Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof. (b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred. (c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party. (d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. (e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 10 contracts
Sources: Underwriting Agreement (Hershey Co), Underwriting Agreement (Hershey Co), Underwriting Agreement (Hershey Co)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of of, or are is based upon an upon, any untrue statement or alleged untrue statement of a material fact contained in or the omission or alleged omission to state in (i) the Registration Statement, as amended or supplemented, a material fact required to be stated therein or necessary to make the Base Prospectus, statements therein not misleading or (ii) any Preliminary Prospectus, the Pricing Prospectus as amended or supplemented, the ProspectusDisclosure Package, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the ActRules and Regulations, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company shall will not be liable under this Section 7(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter the Representatives, on behalf of Designated Securities through the Representatives Underwriters, expressly for use therein (which information is specified in any thereofSection 12 hereof).
(b) Each Underwriter severally severally, but not jointly, will indemnify and hold harmless the Company against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein in (i) the Registration Statement, as amended or supplemented, a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any Preliminary Prospectus, the Prospectus as amended or supplemented, the Disclosure Package, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse the Company promptly after receipt of invoices from the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Representatives, on behalf of such Underwriter through the Representatives Underwriter, expressly for use therein; and, subject to subsection therein (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company which information is specified in connection with investigating or defending any such action or claim as such expenses are incurredSection 12 hereof).
(c) Promptly after receipt by an any indemnified party under subsection (aSection 7(a) or (b7(b) above of notice of any claim or the commencement of any action, such the indemnified party shallwill, if a claim in respect thereof is to be made against one or more of the indemnifying party parties under such subsection, notify the each indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the each such indemnifying party shall will not relieve it from any liability which it may have under this Section 7, except to the indemnifying party extent it has been prejudiced in any material respect by such failure, or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case If any such claim or action shall will be brought against any indemnified party party, and it shall notify the notifies each indemnifying party of the commencement thereof, the each such indemnifying party shall will be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any each other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the each indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the each such indemnifying party shall will not be liable to such the indemnified party under such subsection Section 7(a) or 7(b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection , except that (aA) or the Underwriters will have the right to employ a single counsel (b) above shall only be liable for the legal expenses of one plus a single local counsel for all indemnified parties in each jurisdiction in which different jurisdiction) to represent jointly the Underwriters who may be subject to liability arising out of any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the Company under Section 7(a) if (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Underwriters will have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company, and in the judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company has failed to assume the defense of such action and employ counsel satisfactory to the Underwriters, in which event the fees and expenses of such separate counsel will be paid by the Company, and (B) if the Company is the indemnified party, the Company will have the right to employ a single counsel (plus a single local counsel in each different jurisdiction) to represent the Company who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Company against the Underwriters under Section 7(b) if (i) the employment thereof has been specifically authorized by the Underwriters, in writing, (ii) the Company will have been advised by counsel that there may be one or more legal defenses available to the Company which are different from or additional to those available to the Underwriters, and in the judgment of such counsel it is advisable for the Company to employ separate counsel or (iii) the Underwriters have failed to assume the defense of such action and employ counsel satisfactory to the Company, in which event the fees and expenses of such separate counsel will be paid by the Underwriters. No indemnifying party under will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld or delayed), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such subsection claim or action) unless such settlement, compromise or consent (A) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent will not be unreasonably withheld or delayed), but if settled with the consent of each indemnifying party or if there be a final judgment for the plaintiff in any such action, each such indemnifying partyparty agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 7(a) or (b7(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in Section 7(a) or 7(b) above (or actions in respect thereofi) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall hand will be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative Relative fault shall will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (dSection 7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (dSection 7(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 the first sentence of this subsection (dSection 7(d) shall will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this Section 7(d). Notwithstanding the provisions of this subsection (dSection 7(d), no Underwriter shall will be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public investors were offered to the public investors exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 7(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 7(c) above).
(e) The obligations of the Company under this Section 9 shall 7 will be in addition to any liability which that the Company may otherwise have have, and shall will extend, upon the same terms and conditionsconditions set forth in this Section 7, to each officer the respective officers, directors and director affiliates of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 shall 7 will be in addition to any liability which that the respective Underwriters may otherwise have have, and shall will extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 9 contracts
Sources: Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (O Reilly Automotive Inc)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, andor (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), subject any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information, or any “issuer information” filed or required to subsection (cbe filed under Rule 433(d) belowof the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base ProspectusProspectus as amended or supplemented, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing ProspectusProspectus or the Time of Sale Information, or any such amendment or supplement of or to the foregoing, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities the First Mortgage Bonds through the Representatives expressly for use in the Registration Statement, the Prospectus as amended or supplemented, any thereofPreliminary Prospectus, any Issuer Free Writing Prospectus or the Time of Sale Information, or any such amendment or supplement of or to the foregoing, which information is specified in Section 9(b) hereof.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Time of Sale Information, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Issuer Free Writing Prospectus, the Time of Sale Information, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus as amended or supplemented and any other prospectus relating to the ProspectusFirst Mortgage Bonds, or any such amendment or supplement of or to any thereof, or any Issuer Free Writing Prospectusthe foregoing, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use thereinin any Issuer Free Writing Prospectus, the Time of Sale Information, the Registration Statement, any Preliminary Prospectus, the Prospectus as amended or supplemented and any other prospectus relating to the First Mortgage Bonds, or any such amendment or supplement of or to the foregoing, it being understood and agreed that the only such information consists of the following: (i) the third paragraph of text under the caption “Underwriting” in the Specified Preliminary Prospectus and the Prospectus, concerning the terms of the offering by the Underwriters, (ii) the third and fourth sentences of the fifth paragraph of text under the caption “Underwriting” in the Specified Preliminary Prospectus and the Prospectus, concerning market-making by the Underwriters, and (iii) the sixth and seventh paragraphs of text under the caption “Underwriting” in the Specified Preliminary Prospectus and the Prospectus, concerning overallotment, stabilization, short-positions and penalty bids; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability except to the indemnifying party extent that it has been materially prejudiced by such failure or from any liability which it may have to any indemnified party otherwise other than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in any such action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party under subsection shall bear the reasonable fees, costs and expenses of such separate counsel if (ai) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of any such action; or (biv) above the indemnifying party shall only be liable for authorize the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or (b) above shall not enter into a settlement compromise of, or consent to the entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities First Mortgage Bonds on the other hand from the offering of the Designated Securities First Mortgage Bonds to which such loss, claim, damage or liability (or action in respect thereof) relates relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities First Mortgage Bonds on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault of the Company on the one hand and such Underwriters on the other hand 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other hand and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities First Mortgage Bonds underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities the First Mortgage Bonds in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities First Mortgage Bonds and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 9 contracts
Sources: Underwriting Agreement (Union Electric Co), Underwriting Agreement (Ameren Illinois Co), Underwriting Agreement (Ameren Illinois Co)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, andor (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), subject any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information, or any “issuer information” filed or required to subsection (cbe filed under Rule 433(d) belowof the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base ProspectusProspectus as amended or supplemented, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing ProspectusProspectus or the Time of Sale Information, or any such amendment or supplement of or to the foregoing, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities the First Mortgage Bonds through the Representatives expressly for use in the Registration Statement, the Prospectus as amended or supplemented, any thereofPreliminary Prospectus, any Issuer Free Writing Prospectus or the Time of Sale Information, or any such amendment or supplement of or to the foregoing, which information is specified in Section 9(b) hereof.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Time of Sale Information, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Issuer Free Writing Prospectus, the Time of Sale Information, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus as amended or supplemented and any other prospectus relating to the ProspectusFirst Mortgage Bonds, or any such amendment or supplement of or to any thereof, or any Issuer Free Writing Prospectusthe foregoing, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use thereinin any Issuer Free Writing Prospectus, the Time of Sale Information, the Registration Statement, any Preliminary Prospectus, the Prospectus as amended or supplemented and any other prospectus relating to the First Mortgage Bonds, or any such amendment or supplement of or to the foregoing, it being understood and agreed that the only such information consists of the following: (i) the third paragraph of text under the caption “Underwriting” in the Specified Preliminary Prospectus and the Prospectus, concerning the terms of the offering by the Underwriters, (ii) the third and fourth sentences of the fifth paragraph of text under the caption “Underwriting” in the Specified Preliminary Prospectus and the Prospectus, concerning market-making by the Underwriters, and (iii) the sixth and seventh paragraphs of text under the caption “Underwriting” in the Specified Preliminary Prospectus and the Prospectus, concerning overallotment, stabilization, short-positions and penalty bids; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (aSection 9(a) or (bSection 9(b) above hereof of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionSection 9(a) or Section 9(b) hereof, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability except to the indemnifying party extent that it has been materially prejudiced by such failure or from any liability which it may have to any indemnified party otherwise other than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifySection 9(a) or Section 9(b) hereof. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection Section 9(a) or Section 9(b) hereof for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in any such action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party under subsection shall bear the reasonable fees, costs and expenses of such separate counsel if (ai) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of any such action; or (biv) above the indemnifying party shall only be liable for authorize the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or (b) above shall not enter into a settlement compromise of, or consent to the entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 9(a) or (bSection 9(b) above hereof in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities First Mortgage Bonds on the other hand from the offering of the Designated Securities First Mortgage Bonds to which such loss, claim, damage or liability (or action in respect thereof) relates relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 9(c) hereof, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities First Mortgage Bonds on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault of the Company on the one hand and such Underwriters on the other hand 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other hand and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (dSection 9(d) were determined by pro rata allocation (even if the Underwriters 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 subsection (dSection 9(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 subsection (dSection 9(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 subsection (dSection 9(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities First Mortgage Bonds underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities the First Mortgage Bonds in this subsection (dSection 9(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities First Mortgage Bonds and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 7 contracts
Sources: Underwriting Agreement (Union Electric Co), Underwriting Agreement (Union Electric Co), Underwriting Agreement (Ameren Corp)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter and the affiliates of each Underwriter who have, or are alleged to have, participated in the distribution of the Certificates as underwriters, and each Person, if any, who controls such Underwriter, within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or and liabilities (including, without limitation, any legal or actions other expenses reasonably incurred by any Underwriter or any such controlling person in respect thereofconnection with defending or investigating any such action or claim) arise out of or are based upon an caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any preliminary prospectus, the Base Time of Sale Prospectus, any Preliminary Prospectus“issuer free writing prospectus” as defined in Rule 433(h) under the Securities Act, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed that the Company has filed, or is required to be filed file, pursuant to Rule 433(d) under the ActSecurities Act or the Prospectus, or arise out of any amendment or are based upon the supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, andexcept insofar as any of the aforementioned losses, subject to subsection (c) belowclaims, will reimburse each Underwriter for any legal damages or other expenses reasonably incurred liabilities are caused by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or omission or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance based upon and in conformity with written information furnished to the Company in writing by any Underwriter of Designated Securities through the Representatives expressly for use in the Registration Statement, any thereofpreliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus, or any amendment or supplement thereto (the “Underwriter Information”) or the Depositary Information.
(b) Each Underwriter agrees, severally will and not jointly, to indemnify and hold harmless the Company against any lossesCompany, claimsits directors, damages each of its officers who signed the Registration Statement and each person, if any, who controls the Company, within the meaning of either Section 15 of the Securities Act or liabilities Section 20 of the Exchange Act, to which the same extent as the foregoing indemnity from the Company may become subject, under the Act or otherwise, insofar as to such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case Underwriter but only with reference to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company Underwriter Information provided by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredUnderwriter.
(c) Promptly after receipt by an indemnified party under subsection In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either paragraph (a) or (b) above of notice of the commencement of any actionabove, such person (the “indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party party”) in writing of the commencement thereofwriting; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection paragraph. The indemnifying party, upon request of the indemnified party, shall, and only the indemnifying party may elect to, retain counsel reasonably satisfactory to the extent such indemnified party to represent the indemnified party and any others the indemnifying party has been prejudiced by may designate in such omission so proceeding and the indemnifying party shall pay the fees and disbursements of such counsel related to notifysuch proceeding. In case any such action shall be brought against proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, or (iii) the indemnifying party shall have failed to retain counsel as required by the prior sentence to represent the indemnified party within a reasonable amount of time. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives in the case of parties indemnified pursuant to paragraph (a) above and by the Company in the case of parties indemnified pursuant to paragraph (b) above. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested in writing an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph (c), the indemnifying party agrees that it shall notify the be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 90 days after receipt by such indemnifying party of the commencement thereof, the aforesaid request and (ii) such indemnifying party shall be entitled to participate therein and, not have reimbursed the indemnified party in accordance with such request prior to the extent that it shall wishdate of such settlement, jointly with any other unless such fees and expenses are being disputed in good faith. The indemnifying party similarly notifiedat any time may, subject to assume the defense thereoflast sentence of this paragraph (c), with counsel satisfactory to such indemnified settle or compromise any proceeding described in this paragraph (c), at the expense of the indemnifying party. No indemnifying party (who shall notshall, except with without the prior written consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such effect any settlement of any pending or threatened proceeding in respect of which any indemnified party of its election so to assume the defense thereof, the indemnifying is or could have been a party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) To the extent the indemnification provided for in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection paragraph (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action this Section 6 is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is required to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 but is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above insufficient in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each the applicable indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Certificates or actions in respect thereof(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative fault of the Company Company, on the one hand hand, and the Underwriters of the Designated Securities Underwriters, on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof)liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company Company, on the one hand hand, and such Underwriters the Underwriters, on the other hand, in connection with the offering of such Certificates shall be deemed to be in the same proportion respective proportions as the total net proceeds from the offering of such offering Certificates received by the Original Trusts (before deducting expenses) ), less total underwriting discounts and commissions received by the Company bear to Underwriters, and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of such UnderwritersCertificates. The relative fault of the Company, on the one hand, and of the Underwriters, on the other hand, 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other information supplied by any Underwriters, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective face amount of Certificates they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just and or equitable if contribution pursuant to this subsection (d) Section 6 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection paragraph (d)) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or and liabilities (or actions in respect thereof) referred to above in this subsection paragraph (d) above shall be deemed to include include, subject to the limitations set forth above, 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 subsection (d)Section 6, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Certificates underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(ef) The obligations indemnity and contribution provisions contained in this Section 6 and the representations and warranties of the Company under contained in this Section 9 Agreement shall be remain operative and in addition to full force and effect regardless of (i) any liability which the Company may otherwise have and shall extendtermination of this Agreement, upon the same terms and conditions, to each officer and director (ii) any investigation made by or on behalf of any Underwriter and to each person, if any, who controls or any person controlling any Underwriter within the meaning or by or on behalf of the ActCompany, its officers or directors or any person controlling the Company, and the obligations (iii) acceptance of and payment for any of the Underwriters under Certificates. The remedies provided for in this Section 9 6 are not exclusive and shall not limit any rights or remedies which may otherwise be in addition available to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Actindemnified party at law or in equity.
Appears in 7 contracts
Sources: Underwriting Agreement (United Airlines, Inc.), Underwriting Agreement (United Airlines, Inc.), Underwriting Agreement (United Airlines, Inc.)
Indemnification and Contribution. (a) The Company will Republic agrees to indemnify and hold harmless each Underwriter and each person who controls any Underwriter within the meaning of the Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the laws of any jurisdiction, including but not limited to the Act, the Exchange Act or other federal or State statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement as originally filed or in any amendment thereof, the Base Prospectus, or in any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment thereof or supplement to any thereofthereto, or any Issuer Free Writing Prospectus Prospectus, or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party for any legal or other expenses reasonably incurred by such Underwriter him or it in connection with investigating or defending any such loss, claim, damage, liability or action or claim as within a reasonable time after such expenses are incurred; provided, however, that the Company shall Republic will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company Republic by or on behalf of any Underwriter of Designated Securities through the Representatives expressly specifically for use in connection with the preparation thereof. This indemnity agreement will be in addition to any thereofliability which the Republic may otherwise have.
(b) Each Underwriter agrees severally will and not jointly to indemnify and hold harmless the Company Republic and each of its officials, including its authorized representative in the United States, who signs the Registration Statement, against any and all losses, liabilities, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar and expenses as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentincurred, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such Underwriter furnished to the Company Republic by or on behalf of such Underwriter through the Representatives expressly specifically for use therein; and, subject in the preparation of the documents referred to subsection (c) below, in the foregoing indemnity. This indemnity agreement will reimburse the Company for be in addition to any legal or other expenses reasonably incurred by the Company in connection with investigating or defending liability which any such action or claim as such expenses are incurredUnderwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 9 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 9, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to Section 9 (a) or (b), as the extent such indemnifying party has been prejudiced by such omission so to notifycase may be. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying may elect by written notice delivered to the indemnified party similarly notifiedpromptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party party; provided, however, that if the defendants (who shall not, except with the consent of including any impleaded parties) in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense thereofof such action and approval by the indemnified party of counsel, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 9 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel in each jurisdiction, approved by the Representatives in the case of subsection (a) of this Section 9, representing the indemnified parties under such subsection who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable costs time after notice of investigationcommencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clauses (i) and (iii). The indemnifying party under subsection shall not be liable for any settlement of any proceeding effected without its written consent not unreasonably withheld.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in subsections (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable due in accordance with its terms but is for any reason held by a court to be unavailable, on grounds of policy or insufficient other similar grounds, the Republic and the Underwriters shall contribute to hold harmless an indemnified party under subsection (a) or (b) above in respect of any the aggregate losses, claims, damages or and liabilities (including any legal or actions other expenses reasonably incurred in respect thereofconnection with investigating or defending same) referred to thereinwhich the Republic and one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the total of the underwriting discounts appearing on the front cover page of the Prospectus Supplement bears to the total public offering price of the Securities appearing thereon and the Republic is responsible for the balance. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required in Section 9(c), then each indemnifying party shall will contribute to the such amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company Republic, on the one hand hand, and the Underwriters of the Designated Securities Underwriters, on the other hand, in connection with the statements or omissions which resulted in such lossesloss, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company on Republic or the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection foregoing, (d), y) in no case shall any Underwriter shall (except as may be required to contribute provided in an agreement among Underwriters) be responsible for any amount in excess of the amount by which total of the total price at which the underwriting discounts applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which Securities purchased by such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Underwriters hereunder and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend9, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any an Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 Act shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms rights to contribution as such Underwriter, subject to clauses (y) and conditions, to each officer and director (z) of the Company and to each person, if any, who controls the Company within the meaning of the Actthis subsection (d).
Appears in 7 contracts
Sources: Underwriting Agreement (Republic of Colombia), Underwriting Agreement (Republic of Colombia), Underwriting Agreement (Republic of Colombia)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter, the directors and officers of each Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement for the registration of the Securities as originally filed or in any amendment thereof, the Base Prospectus, or in any Preliminary Prospectus, the Pricing Prospectus or the Final Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or the information contained in the final term sheet required to be prepared and filed pursuant to Rule 433(dSection 4(b) under the Acthereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly specifically for use in connection with the preparation thereof. This indemnity agreement will be in addition to any thereofliability which the Company may otherwise have.
(b) Each Underwriter severally will and not jointly agrees to indemnify and hold harmless the Company against any lossesCompany, claimseach of its directors and officers, damages or liabilities to which and each person who controls the Company may become subject, under within the meaning of either the Act or otherwisethe Exchange Act, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentsame extent as the foregoing indemnity from the Company in Section 7(a) hereto, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives expressly specifically for use therein; andin the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (A) in the last paragraph of the cover page regarding delivery of the Securities and (B) under the heading “Underwriting”: (i) the list of Underwriters and their respective participation in the sale of the Securities, subject (ii) the sentences related to subsection concessions and reallowances and (ciii) belowthe five paragraphs related to over-allotments, will reimburse syndicate covering transactions, stabilization transactions and penalty bids constitute the Company only information furnished in writing by or on behalf of the several Underwriters for any legal or other expenses reasonably incurred by inclusion in the Company documents referred to in connection with investigating or defending any such action or claim as such expenses are incurredthe foregoing indemnity.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 7 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any liability obligations to any indemnified party which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel satisfactory to such indemnified party (who shall not, except with the consent of to represent the indemnified partyparty in such action; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume appoint counsel to defend such action and approval by the defense thereofindemnified party of such counsel, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 7 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs unless (i) the use of investigation. The counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel), approved by the Representatives in the case of paragraph (a) of this Section 7, representing the indemnified parties under subsection such paragraph (a) who are parties to such action), (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iv) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. An indemnifying party shall not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) or (b) above shall only be liable of this Section 7 is due in accordance with its terms but is for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into reason held by a settlement of any litigation in respect of which a claim is court to be made against unavailable from the indemnifying party under such subsection unless such settlement is effected with Company on grounds of policy or otherwise, the consent of Company and the indemnifying party.
(d) If Underwriters shall contribute to the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any aggregate losses, claims, damages or and liabilities (including legal or actions other expenses reasonably incurred in respect thereofconnection with investigation or defending same) referred (collectively “Losses”) to therein, then each indemnifying party shall contribute to which the amount paid Company and one or payable by such indemnified party as a result more of such losses, claims, damages or liabilities (or actions in respect thereof) the Underwriters may be subject in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and by the Underwriters of the Designated Securities on the other from the offering of the Designated Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to which reflect not only such loss, claim, damage or liability (or action in respect thereof) relates relative benefits but also the relative fault of the Company on the one hand and of the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as equal to the total net proceeds from such the offering (before deducting expenses) received by it, and benefits received by the Company bear Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by such Underwriterscommissions, in each case as set forth on the cover page of the Final Prospectus. The relative Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied provided by the Company on the one hand or such the Underwriters on the other other, the intent of the parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimabove. Notwithstanding the provisions of this subsection paragraph (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend7, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any an Underwriter within the meaning of the ActAct shall have the same rights to contribution as such Underwriter, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to preceding sentence of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d).
Appears in 7 contracts
Sources: Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter, each of such Underwriter’s directors, officers and affiliates, and each person who controls such Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Time of Sale Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectuspreliminary prospectus, any amendment or supplement to any thereoffree writing prospectus that the Company has filed, or any Issuer Free Writing Prospectus or any “issuer information” filed or is required to be filed file, pursuant to Rule 433(d) under the Act, any other free writing prospectus (including, without limitation, any electronic road show) or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information relating to any Underwriter or the underwriting arrangements furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in the Time of Sale Prospectus, any thereoffree writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Act or the Prospectus. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally will and not jointly, to indemnify and hold harmless the Company against any lossesCompany, claimseach of its directors, damages or liabilities to which each of its officers who signs the Registration Statement and each person who controls the Company may become subject, under within the meaning of either the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case Exchange Act to the extentsame extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, written information relating to any Preliminary Prospectus, the Pricing Prospectus Underwriter or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information underwriting arrangements furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject in the documents referred to subsection (c) below, in the foregoing indemnity. This indemnity agreement will reimburse be in addition to any liability which the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredUnderwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under subsection (aSection 7(a) or (bSection 7(b) above of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionSection 7(a) or Section 7(b), notify the indemnifying party in writing of the commencement thereof; , but the omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifySection 7(a) or Section 7(b). In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein andtherein, and to the extent that it shall wish, jointly with any other indemnifying may elect by written notice delivered to the indemnified party similarly notifiedpromptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall notparty; provided, except with however, that if the consent of defendants in any such action include both the indemnified party, party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so as to assume the defense thereofof such action and approval by the indemnified party of counsel, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 7 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to one local counsel in each applicable jurisdiction), approved by the Underwriters in the case of paragraph (a) of this Section 7, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable costs time after notice of investigationcommencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). The indemnifying party under subsection (a) or (b) above shall only be liable for have the legal expenses right to, without the prior written consent of one counsel for all the indemnified parties in each jurisdiction in which party, effect any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation pending or threatened proceeding in respect of which any indemnified party is or could have been a claim is to be made against the indemnifying party under and indemnity could have been sought hereunder by such subsection unless indemnified party so long as such settlement (i) is effected with limited to the consent payment of monetary damages only, (ii) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such proceeding and (iii) does not (x) include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party or (y) otherwise give rise to additional liabilities on the part of the indemnified party.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions action in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such each Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated for Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities Securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 6 contracts
Sources: Underwriting Agreement (Lincoln National Corp), Underwriting Agreement (Lincoln National Corp), Underwriting Agreement (Lincoln National Corp)
Indemnification and Contribution. (a) The Company and Advanta, jointly and severally, will indemnify and hold harmless each Underwriter, its partners, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act, from and against (i) any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter or any such controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (x) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Preliminary Prospectus (it being understood that such indemnification with respect to the Preliminary Prospectus does not include the omission of financing and price-dependent information, which information will of necessity only appear in the final Prospectus, any Preliminary Prospectus, the Pricing Prospectus ) or the Prospectus, or any amendment or supplement to any thereof, thereto or the Static Pool Information or any Issuer Free Writing Prospectus written information provided to an Underwriter by the Company or Advanta for use in any “issuer information” filed Underwriter Permitted Written Communications or required to be filed pursuant to Rule 433(d(y) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleadingmisleading (it being understood that with respect to Static Pool Information and information provided for use in any Underwriter Permitted Written Communications, andsuch information shall be considered together with the information provided in the Preliminary Prospectus or the Prospectus, subject to subsection (c) belowas the case may be), and will promptly reimburse each Underwriter, their respective directors and officers and each person who controls the Underwriter within the meaning of Section 15 of the Act, for any legal or other expenses reasonably incurred by any Underwriter and such Underwriter other indemnified persons in connection with investigating investigating, preparing or defending any such loss, claim, damage, liability or action or claim as such expenses are incurred; provided, however, that the Company and Advanta shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereofUnderwriters’ Information.
(b) Each Underwriter will severally will and not jointly indemnify and hold harmless the Company and Advanta, their respective directors and officers and each person, if any who controls the Company or Advanta, as the case may be, within the meaning of Section 15 of the Act, against (i) any losses, claims, damages or liabilities liabilities, joint or several, to which the Company Company, Advanta or such indemnified person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (x) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon (y) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading, in each case to the extent, but only to the extent that extent, that, with respect to any Underwriter, such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Underwriters’ Information and will reimburse any legal or other expenses reasonably incurred by the Company by and Advanta in connection with investigating or defending any such Underwriter through the Representatives expressly for use thereinloss, claim, damage, liability or action as such expenses are incurred; and, subject to subsection (c) below, and will reimburse the Company and Advanta, their respective directors and officers and each person who controls the Company or Advanta within the meaning of Section 15 of the Act, for any legal or other expenses reasonably incurred by the Company Company, Advanta and such other indemnified persons in connection with investigating investigating, preparing or defending any such loss, claim, damage, liability or action or claim as such expenses are incurred.
(c) Each Underwriter will severally and not jointly indemnify and hold harmless the Company and Advanta, their respective directors and officers and each person, if any who controls the Company or Advanta, as the case may be, within the meaning of Section 15 of the Act, against (i) any losses, claims, damages or liabilities, joint or several, to which the Company, Advanta or such indemnified person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (x) an untrue statement or alleged untrue statement of a material fact contained in an Underwriter Permitted Written Communications (as defined in Section 6 of this Agreement) or (y) the omission or alleged omission to state in an Underwriter Permitted Written Communications a material fact required to be stated therein or necessary to make the statements therein, when considered in conjunction with all information conveyed to an investor at the Time of Sale, in the light of the circumstances under which they were made not misleading and will reimburse any legal or other expenses reasonably incurred by the Company and Advanta in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; and will reimburse the Company and Advanta, their respective directors and officers and each person who controls the Company or Advanta within the meaning of Section 15 of the Act, for any legal or other expenses reasonably incurred by the Company, Advanta and such other indemnified persons in connection with investigating, preparing or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that such Underwriter will not be liable in any such case to the extent that any such loss, claim, damage or liability, arises out of or is based upon any such untrue statement or alleged untrue statement in any Underwriter Permitted Written Communications in reliance upon and in conformity with any written information furnished to such Underwriter by the Company or Advanta for use therein or the Preliminary Prospectus or the Prospectus and which information was not corrected by information subsequently provided by the Company or Advanta in writing to such Underwriter prior to the time of use of such Underwriter Permitted Written Communications.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (bc) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the claim or commencement thereof; but provided, however, that the omission so failure to notify the an indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure; and provided further, however, that the failure to notify any indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.this
Appears in 5 contracts
Sources: Underwriting Agreement (Advanta Business Receivables Corp), Underwriting Agreement (Advanta Business Receivables Corp), Underwriting Agreement (Advanta Business Receivables Corp)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter, each of such Underwriter’s directors, officers and affiliates, and each person who controls such Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Basic Prospectus, the Time of Sale Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectuspreliminary prospectus, any amendment or supplement to any thereoffree writing prospectus that the Company has filed, or any Issuer Free Writing Prospectus or any “issuer information” filed or is required to be filed file, pursuant to Rule 433(d) under the Act, any other free writing prospectus (including, without limitation, any electronic road show) or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information relating to any Underwriter or the underwriting arrangements furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in the Time of Sale Prospectus, any thereoffree writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Act or the Prospectus. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally will and not jointly, to indemnify and hold harmless the Company against any lossesCompany, claimseach of its directors, damages or liabilities to which each of its officers who signs the Registration Statement and each person who controls the Company may become subject, under within the meaning of either the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case Exchange Act to the extentsame extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to the extent that written information relating to such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Underwriter or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information underwriting arrangements furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject in the documents referred to subsection (c) below, in the foregoing indemnity. This indemnity agreement will reimburse be in addition to any liability which the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredUnderwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under subsection (aSection 7(a) or (bSection 7(b) above of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionSection 7(a) or Section 7(b), notify the indemnifying party in writing of the commencement thereof; , but the omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifySection 7(a) or Section 7(b). In case any such action shall be brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall notparty; provided, except with however, that if the consent of defendants in any such action include both the indemnified party, party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so as to assume the defense thereofof such action and approval by the indemnified party of counsel, the indemnifying party shall not be liable to such indemnified party under such subsection this Section 7 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other thereof, unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to one local counsel in each applicable jurisdiction), approved by the Underwriters in the case of paragraph (a) of this Section 7, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable costs time after notice of investigationcommencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). The indemnifying party under subsection (a) or (b) above shall only be liable for have the legal expenses right to, without the prior written consent of one counsel for all the indemnified parties in each jurisdiction in which party, effect any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation pending or threatened proceeding in respect of which any indemnified party is or could have been a claim is to be made against the indemnifying party under and indemnity could have been sought hereunder by such subsection unless indemnified party so long as such settlement (i) is effected with limited to the consent payment of monetary damages only, (ii) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such proceeding and (iii) does not (x) include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party or (y) otherwise give rise to additional liabilities on the part of the indemnified party.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action actions in respect thereof) relates relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions action in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated for Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities Securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 5 contracts
Sources: Underwriting Agreement (Reinsurance Group of America Inc), Underwriting Agreement (Reinsurance Group of America Inc), Underwriting Agreement (Reinsurance Group of America Inc)
Indemnification and Contribution. (a) The Company will and each of the Guarantors will, jointly and severally, indemnify and hold harmless each Underwriter from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of of, or are is based upon an upon, any untrue statement or alleged untrue statement of a material fact contained in or the omission or alleged omission to state in (i) the Registration Statement, as amended or supplemented, a material fact required to be stated therein or necessary to make the Base Prospectus, statements therein not misleading or (ii) any Preliminary Prospectus, the Pricing Prospectus as amended or supplemented, the ProspectusDisclosure Package, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the ActRules and Regulations, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company shall and the Guarantors will not be liable under this Section 7(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter the Representatives, on behalf of Designated Securities through the Representatives Underwriters, expressly for use therein (which information is specified in any thereofSection 12 hereof).
(b) Each Underwriter severally severally, but not jointly, will indemnify and hold harmless the Company and each of the Guarantors against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company or any Guarantor or Guarantors may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein in (i) the Registration Statement, as amended or supplemented, a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any Preliminary Prospectus, the Prospectus as amended or supplemented, the Disclosure Package, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse the Company and any Guarantor or Guarantors, as the case may be, promptly after receipt of invoices from the Company and any Guarantor or Guarantors, as the case may be, for any legal or other expenses reasonably incurred by the Company and any Guarantor or Guarantors, as the case may be, in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Representatives, on behalf of such Underwriter through the Representatives Underwriter, expressly for use therein; and, subject to subsection therein (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company which information is specified in connection with investigating or defending any such action or claim as such expenses are incurredSection 12 hereof).
(c) Promptly after receipt by an any indemnified party under subsection (aSection 7(a) or (b7(b) above of notice of any claim or the commencement of any action, such the indemnified party shallwill, if a claim in respect thereof is to be made against one or more of the indemnifying party parties under such subsection, notify the each indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the each such indemnifying party shall will not relieve it from any liability which it may have under this Section 7, except to the indemnifying party extent it has been prejudiced in any material respect by such failure, or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case If any such claim or action shall will be brought against any indemnified party party, and it shall notify the notifies each indemnifying party of the commencement thereof, the each such indemnifying party shall will be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any each other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the each indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the each such indemnifying party shall will not be liable to such the indemnified party under such subsection Section 7(a) or 7(b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection , except that (aA) or the Underwriters will have the right to employ a single counsel (b) above shall only be liable for the legal expenses of one plus a single local counsel for all indemnified parties in each jurisdiction in which different jurisdiction) to represent jointly the Underwriters who may be subject to liability arising out of any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the Company and any Guarantor or Guarantors, as the case may be, under Section 7(a) if (i) the employment thereof has been specifically authorized by the Company and any Guarantor or Guarantors, as the case may be, in writing, (ii) the Underwriters will have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company and any Guarantor or Guarantors, as the case may be, and in the judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company or any Guarantor or Guarantors, as the case may be, has failed to assume the defense of such action and employ counsel satisfactory to the Underwriters, in which event the fees and expenses of such separate counsel will be paid by the Company and such Guarantor or Guarantors, as the case may be, and (B) if the Company or any Guarantor is the indemnified party, the Company and any Guarantor will have the right to employ a single counsel (plus a single local counsel in each different jurisdiction) to represent jointly the Company or any Guarantor who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Company or any Guarantor against the Underwriters under Section 7(b) if (i) the employment thereof has been specifically authorized by the Underwriters, in writing, (ii) the Company or any Guarantor will have been advised by counsel that there may be one or more legal defenses available to the Company or any such Guarantor which are different from or additional to those available to the Underwriters, and in the judgment of such counsel it is advisable for the Company or any such Guarantor to employ separate counsel or (iii) the Underwriters have failed to assume the defense of such action and employ counsel satisfactory to the Company and any such Guarantor, in which event the fees and expenses of such separate counsel will be paid by the Underwriters. No indemnifying party under will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld or delayed), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such subsection claim or action) unless such settlement, compromise or consent (A) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent will not be unreasonably withheld or delayed), but if settled with the consent of each indemnifying party or if there be a final judgment for the plaintiff in any such action, each such indemnifying partyparty agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 7(a) or (b7(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in Section 7(a) or 7(b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other hand from the offering of the Notes or actions in respect thereof(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative fault of the Company and the Guarantors on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and such the Underwriters on the other shall hand will be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative Relative fault shall will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on and the one hand Guarantors or such the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company Company, each of the Guarantors and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (dSection 7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (dSection 7(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 the first sentence of this subsection (dSection 7(d) shall will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this Section 7(d). Notwithstanding the provisions of this subsection (dSection 7(d), no Underwriter shall will be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public investors were offered to the public investors exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 7(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 7(c) above).
(e) The obligations of the Company and the Guarantors under this Section 9 shall 7 will be in addition to any liability which that the Company and the Guarantors may otherwise have have, and shall will extend, upon the same terms and conditionsconditions set forth in this Section 7, to each officer the respective officers, directors and director affiliates of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 shall 7 will be in addition to any liability which that the respective Underwriters may otherwise have have, and shall will extend, upon the same terms and conditions, to each officer and director of the Company and each of the Guarantors (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company and each of the Guarantors who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 5 contracts
Sources: Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (O'Reilly II Aviation Corp)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, the Disclosure Package, or any “issuer free writing prospectus” (as defined in Rule 433(d) under the Securities Act) relating to the offering of the Securities, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or Prospectus, the Prospectus, or any amendment or supplement to any thereofthereto, the Disclosure Package, or any Issuer Free Writing Prospectussuch issuer free writing prospectus, made in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereoftherein.
(b) Each Underwriter will, severally will and not jointly, indemnify and hold harmless the Company against any lossesto the same extent as the indemnity set forth in Section 8(a) hereof, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, but only insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein state, a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (aSection 8(a) or (b8(b) above hereof of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionSection 8(a) or 8(b), as the case may be, notify the indemnifying party in writing of the commencement thereof; but the omission to so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to Section 8(a) or 8(b), as the extent such indemnifying party has been prejudiced by such omission so to notifycase may be. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection Section 8(a) or 8(b), as the case may be, for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The ; provided, however, that any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party under subsection (a) and the indemnified party shall have mutually agreed to the retention of such counsel or (bii) above the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that, notwithstanding the preceding sentence of this Section 8(c), the indemnifying party shall only not be liable for the legal reasonable fees and expenses of more than one separate firm (in addition to not more than one separate local counsel for all indemnified parties in each any jurisdiction in which any claim or action is brought. An the indemnified party under subsection (arequires representation by separate counsel) for all such indemnified parties. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or (b) above shall not enter into a settlement compromise of, or consent to the entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a claim statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. An indemnifying party shall not be liable for any settlement effected by an indemnified party without its prior written consent, but if the settlement is to be made against with such consent, the indemnifying party under agrees to indemnify the indemnified party from and against any loss or liability by reason of such subsection unless such settlement is effected with the consent of the indemnifying partysettlement.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 8(a) or (b8(b) above hereof in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company Company, on the one hand hand, and the Underwriters of the Designated Securities Underwriters, on the other other, from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under Section 8(c) hereof, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company Company, on the one hand hand, and the Underwriters of the Designated Securities Underwriters, on the other other, in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company Company, on the one hand hand, and such Underwriters the Underwriters, on the other other, shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth on the cover page of the Prospectus. 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 omissions omission to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading relates to information supplied by the Company Company, on the one hand hand, or such Underwriters by the Underwriters, on the other other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (dSection 8(d) were determined by pro rata allocation (even if the Underwriters 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 subsection (dSection 8(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 subsection (dSection 8(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 subsection (dSection 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 8(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and any other affiliate (within the meaning of Rule 405 under the Securities Act, ) of any Underwriter; and the obligations of the Underwriters under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to Company, each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and any other affiliate (within the meaning of Rule 405 under the Securities Act) of the Company.
Appears in 4 contracts
Sources: Underwriting Agreement (Microsoft Corp), Underwriting Agreement (Microsoft Corp), Underwriting Agreement (Microsoft Corp)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon the failure to have an effective Registration Statement relating to the Securities or the failure to satisfy the prospectus delivery requirements of the Securities Act because the Company failed to provide the Underwriters with a Prospectus for delivery, or arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Disclosure Package or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the Securities Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, andor arise out of or are based upon the engagement of the Underwriters pursuant to, subject or the performance of the Underwriters of their respective services (including any such services performed on or prior to subsection (cthe date hereof) belowcontemplated by, this Agreement, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Disclosure Package, the Registration Statement or the Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly for use therein. The Underwriters shall incur no liability to and shall be indemnified and held harmless by the Company for, or in respect of, any thereofactions taken, omitted to be taken or suffered to be taken in the absence of bad faith, gross negligence or willful misconduct by the Underwriters in reasonable reliance upon the advice of counsel satisfactory to it or instructions from the Trustee (pursuant to the Indenture) or the Company.
(b) Each Underwriter Underwriter, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Disclosure Package or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, Disclosure Package or the Pricing Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party (or such other release of the indemnified party as shall be satisfactory to the indemnified party) from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other hand in connection with the offering of the Securities shall be deemed to be in the same proportion respective proportions as the total net proceeds from such offering (before deducting expenses) received by the Company bear to from the sale of the Securities and the total underwriting discounts and commissions received by such Underwritersthe Underwriters with respect to the offering of the Securities, bear to the aggregate offering price of the Securities. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters 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 Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten underwriting discounts and commissions received by it and distributed such Underwriter with respect to the public were offered to offering of the public Securities exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each director and officer and director of any each Underwriter and to each person, if any, who controls any an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Underwriters; and the obligations of the Underwriters under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
Appears in 4 contracts
Sources: Underwriting Agreement (Travelers Companies, Inc.), Underwriting Agreement (Travelers Companies, Inc.), Underwriting Agreement (Travelers Companies, Inc.)
Indemnification and Contribution. (a) The Company will Partnership Parties jointly and severally agree to indemnify and hold harmless each Underwriter, the directors, officers, employees, agents and affiliates of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statementregistration statement for the registration of the Units as originally filed or in any amendment thereof, or in the Base Prospectus any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Units, the Base Prospectus, any Preliminary ProspectusDisclosure Package, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or in any “issuer information” filed amendment thereof or required to be filed pursuant to Rule 433(d) under the Actsupplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall Partnership Parties will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company Partnership by or on behalf of any Underwriter of Designated Securities through the Representatives expressly Representative specifically for use inclusion therein. This indemnity agreement will be in addition to any thereofliability which the Partnership Parties may otherwise have.
(b) Each Underwriter severally will and not jointly agrees to indemnify and hold harmless the Company against any lossesPartnership Parties, claims, damages or liabilities to which each of the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in General Partner’s directors and officers who sign the Registration Statement, and each person who controls the Base ProspectusPartnership Parties within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Partnership Parties to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Partnership by or on behalf of such Underwriter through the Representative specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Partnership Parties acknowledge that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Units and, under the heading “Underwriting”, (ii) the list of Underwriters and their respective participation in the sale of the Units, (iii) the sentences related to concessions and reallowances and (iv) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus, the Pricing Prospectus and any Issuer Free Writing Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, any amendment or supplement to any thereof, or the Prospectus and any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 8 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 8, notify the indemnifying party in writing of the commencement thereof; but the omission failure so to notify the indemnifying party shall (i) will not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection paragraph (a) or (b) above shall only be liable for unless and to the legal expenses extent it did not otherwise learn of one counsel for all indemnified parties such action and such failure results in each jurisdiction the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in which any claim or action is brought. An event, relieve the indemnifying party from any obligations to any indemnified party under subsection other than the indemnification obligation provided in paragraph (a) or (b) above above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not enter into a settlement thereafter be responsible for the fees and expenses of any litigation separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which a indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim is to be made against the indemnifying party under such subsection or action) unless such settlement is effected with the settlement, compromise or consent includes an unconditional release of the indemnifying each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If In the indemnification event that the indemnity provided for in paragraph (a), (b) or (c) of this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of for any reason, the Partnership Parties and the Underwriters severally agree to contribute to the aggregate losses, claims, damages or and liabilities (including legal or actions other expenses reasonably incurred in respect thereofconnection with investigating or defending the same) referred (collectively “Losses”) to thereinwhich the Partnership Parties and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Partnership Parties on the one hand and by the Underwriters on the other from the offering of the Units; provided, then each indemnifying party however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Units) be responsible for any amount in excess of the underwriting discount or commission applicable to the Units purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Partnership Parties and the Underwriters severally 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) in such proportion as is appropriate to reflect not only the such relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company Partnership Parties on the one hand and of the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company on the one hand and such Underwriters on the other Partnership Parties shall be deemed to be in the same proportion as equal to the total net proceeds from such the offering (before deducting expensesexpenses and applicable structuring and advisory fees) received by the Company bear Partnership, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by such Underwriterscommissions, in each case as set forth on the cover page of the Prospectus. The relative Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied provided by the Company Partnership Parties on the one hand or such the Underwriters on the other other, the intent of the parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company Partnership Parties and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimabove. Notwithstanding the provisions of this subsection paragraph (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend8(d), upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any an Underwriter within the meaning of either the ActAct or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, person who controls the Company Partnership within the meaning of either the Act or the Exchange Act, each officer of the Partnership who shall have signed the Registration Statement and each director of the Partnership shall have the same rights to contribution as the Partnership Parties, subject in each case to the applicable terms and conditions of this paragraph (d).
Appears in 4 contracts
Sources: Underwriting Agreement (Tesoro Logistics Lp), Underwriting Agreement (Tesoro Logistics Lp), Underwriting Agreement (Tesoro Logistics Lp)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise arising out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement for the registration of the Notes as originally filed or in any amendment thereof, or in the Base Basic Prospectus, any Preliminary Final Prospectus, the Pricing Prospectus or the Final Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus Prospectus, the Preliminary Canadian Offering Memorandum, the Canadian Offering Memorandum or in any “issuer information” filed amendment thereof or required to be filed pursuant to Rule 433(d) under the Actsupplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) reimburse each such indemnified party to the extent set forth below, will reimburse each Underwriter as incurred, for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly or directly by any Underwriter specifically for use therein (it being understood and agreed that the only such information furnished by any Underwriter consists of such information described as such in any thereofUnderwriter Blood Letter provided by such parties). This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter Underwriter, severally will and not jointly, agrees to indemnify and hold harmless the Company against any lossesCompany, claimseach of its directors, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out each of or are based upon an untrue statement or alleged untrue statement of a material fact contained in its officers who signs the Registration Statement, and each person who controls the Base ProspectusCompany within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentsame extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives expressly or directly by any Underwriter for use therein; and, subject in the preparation of the documents referred to subsection in the foregoing indemnity (c) below, will reimburse it being understood and agreed that the Company for only such information furnished by any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any Underwriter consists of such action or claim information described as such expenses are incurredin any Underwriter Blood Letter provided by such parties). This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 9 of notice of the commencement of any actionaction (including any governmental investigation), such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionclause (a) or (b) of this Section 9, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifyclause (a) or (b) of this Section 9. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein andtherein, and to the extent that it shall wish, jointly jointly, with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party). In any such proceeding, andany indemnified party shall have the right to obtain its own counsel, after notice from but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnified party and the indemnifying party and representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate identified firm (in addition to any identified local counsel) for all such indemnified party parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives in the case of its election so parties to assume be indemnified pursuant to paragraph (a) of this Section 9 and by the defense thereof, Company in the case of parties to be indemnified pursuant to paragraph (b) of this Section 9. An indemnifying party shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to such indemnify the indemnified party under from and against any loss or liability by reason of such subsection for settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld or delayed), effect any legal expenses settlement of other counsel any pending or threatened proceeding in respect of which any other expenses, in each case subsequently incurred indemnified party is a party and indemnity could have been sought hereunder by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with (i) includes an unconditional release of such indemnified party from all liability on claims that are the consent subject matter of such proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of the indemnifying indemnified party.
(d) If To the extent the indemnification provided for in this Section 9 9(a) or 9(b) hereof is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above insufficient in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and each Underwriter, on the other hand, from the offering of such Notes or actions in respect thereof(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative fault of the Company Company, on the one hand hand, and the Underwriters of the Designated Securities each Underwriter, on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof)liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company Company, on the one hand hand, and such Underwriters each Underwriter, on the other hand, in connection with the offering of such Notes shall be deemed to be in the same proportion respective proportions as the total net proceeds from the offering of such offering Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriterseach Underwriter in respect thereof. The relative fault of the Company, on the one hand, and each Underwriter, on the other hand, 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or by such Underwriters on the other Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Each Underwriter’s obligation to contribute pursuant to this Section 9 shall be several in the proportion that the principal amount of Notes the sale of which by such Underwriter gave rise to such losses, claims, damages or liabilities bears to the aggregate principal amount of Notes the sale of which by all Underwriters gave rise to such losses, claims, damages or liabilities, and not joint.
(e) The Company and the Underwriters agree that it would not be just and or equitable if contribution pursuant to this subsection (dSection 9(d) hereof were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (d)Section 9(d) hereof. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or and liabilities (or actions in respect thereof) referred to above in this subsection (dSection 9(d) hereof shall be deemed to include include, subject to the limitations set forth above, 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 subsection (d)Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it Notes referred to in Section 9(d) hereof that were offered and distributed sold to the public were offered to the public through such Underwriter exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 4 contracts
Sources: Underwriting Agreement (Wells Fargo & Company/Mn), Underwriting Agreement (Wells Fargo & Company/Mn), Underwriting Agreement (Wells Fargo & Company/Mn)
Indemnification and Contribution. (a) A. The Company will Depositor agrees to indemnify and hold harmless each Underwriter, each Underwriter's respective officers and directors and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act from and against any and all loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Offered Certificates), to which such Underwriter or any such controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereof or supplement thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and shall reimburse such Underwriter and each such controlling person promptly upon demand for any legal or other expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Depositor shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus, or any amendment thereof or supplement thereto, or the Registration Statement, or any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein. The foregoing indemnity agreement is in addition to any liability which the Depositor may otherwise have to any Underwriter or any such officer or director or any controlling person of any such Underwriter.
B. Each Underwriter severally agrees to indemnify and hold harmless the Depositor, each of its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the Securities Act against any and all loss, claim, damage or liability, or any action in respect thereof, to which the Depositor or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereof or supplement thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein, and shall reimburse the Depositor and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Depositor or any director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Depositor or any such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section VIII of notice of any claim or the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against any indemnifying party under this Section VIII, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify an indemnifying party shall not relieve it from any liability which it may have under this Section VIII except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify any indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under this Section VIII. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, except to the extent provided in the next following paragraph, the indemnifying party shall not be liable to the indemnified party under this Section VIII for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless: (i) the employment thereof has been specifically authorized by the indemnifying party in writing; (ii) such indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party and in the reasonable judgment of such counsel it is advisable for such indemnified party to employ separate counsel; or (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to one local counsel per jurisdiction) at any time for all such indemnified parties, which firm shall be designated in writing by the related Underwriter, if the indemnified parties under this Section VIII consist of one or more Underwriters or any of its or their controlling persons, or the Depositor, if the indemnified parties under this Section VIII consist of the Depositor or any of the Depositor's directors, officers or controlling persons. Each indemnified party, as a condition of the indemnity agreements contained in Section VIII(A) and (B), shall use its best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes an unconditional release of such indemnified party from all liability on any claims that are the subject of such action. Notwithstanding the foregoing paragraph, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.
D. Each Underwriter agrees to provide the Depositor no later than two Business Days prior to the day on which the Prospectus Supplement is required to be filed pursuant to Section I.A. hereof with a copy of any Computational Materials (defined below) produced by such Underwriter for filing with the Commission on Form 8-K.
E. Each Underwriter severally agrees, to the extent that all Seller Provided Information is accurate and complete in all material respects, to indemnify and hold harmless the Depositor, each of the Depositor's officers and directors and each person who controls the Depositor within the meaning of Section 15 of the Securities Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they may become subject, subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged any untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the ActComputational Materials provided by such Underwriter, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleadingmisleading when read in conjunction with the Prospectus, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party for any legal or other expenses reasonably incurred by such Underwriter him, her or it in connection with investigating or defending or preparing to defend any such loss, claim, damage, liability or action or claim as such expenses are incurred; provided, however, that the Company in no event shall not an Underwriter be liable in any such case to the extent that any such loss, claim, damage or liability arises out Depositor under this paragraph E in an amount in excess of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company fees received by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs offering of investigationthe Offered Certificates. The indemnifying party obligations of an Underwriter under subsection this Section VIII (aE) or shall be in addition to any liability which such Underwriter may otherwise have. The procedures set forth in Section VIII (bC) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection equally applicable to this Section VIII (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying partyE).
(d) F. If the indemnification provided for in this Section 9 is VIII shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under subsection Section VIII (aA), (B) or (bE) above in respect of any lossesloss, claimsclaim, damages damage or liabilities (liability, or actions any action in respect thereof) , referred to therein, then each indemnifying party shall shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damages damage or liabilities (liability, or actions action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Depositor on the one hand and the Underwriters on the other from the offering of the relevant class of Offered Certificates or (ii) if the allocation provided by clause (i) above is not permitted by applicable law or if the indemnified party failed to give the notice required under Section VIII (C), in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative fault of the Company Depositor on the one hand and the Underwriters of the Designated Securities related Underwriter on the other in connection with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage or liabilities (liability, or actions action in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by of an Underwriter and the Company on the one hand and such Underwriters on the other Depositor shall be deemed to be in the same such proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company Depositor bear to the total underwriting discounts and commissions received by such Underwritersthe related Underwriter from time to time in negotiated sales of the related Offered Certificates. The relative fault of an Underwriter and the Depositor shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on Depositor or by such Underwriter, the one hand or such Underwriters on intent of the other parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionomission and other equitable considerations. The Company Depositor and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection Section VIII (dF) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purposepurposes) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this subsection (d)herein. The amount paid or payable by an indemnified party as a result of the lossesloss, claimsclaim, damages damage or liabilities (liability, or actions action in respect thereof) , referred to above in this subsection Section VIII (dF) shall be deemed to include include, for purposes of this Section VIII (F), 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 For purposes of this subsection Section VIII, in no case shall any Underwriter (d), no except with respect to any document (other than the Computational Materials) incorporated by reference into the Registration Statement or Prospectus at the request of such Underwriter shall and except as may be required provided in any agreement among the Underwriters relating to contribute the offering of the Offered Certificates) be responsible for any amount in excess of the amount by which (x) the total price at which amount received by such Underwriter in connection with its sale of the applicable Designated Securities underwritten Offered Certificates exceeds (y) the amount paid by it and distributed such Underwriter to the public were offered to Depositor for the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionOffered Certificates hereunder. No person 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 obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations G. For purposes of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extendVIII, upon the same terms and conditions, as to each officer and director of any Underwriter and to each personthe term "Computational Materials" means such portion, if any, who controls any Underwriter within the meaning of the Act, and information delivered to the obligations of Depositor by such Underwriter pursuant to Section VIII(D) for filing with the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.Commission on Form 8-K as:
Appears in 4 contracts
Sources: Underwriting Agreement (Contisecurities Asset Funding Corp), Underwriting Agreement (Contimortgage Home Equity Loan Trust 1997-1), Underwriting Agreement (Contimortgage Home Equity Loan Trust 1996-4)
Indemnification and Contribution. (a) The Company will shall indemnify and hold harmless each Underwriter Investor and each underwriter, if any, which facilitates the disposition of Registrable Securities, and each of their respective officers and directors and each person who controls such Investor or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such person being sometimes hereinafter referred to as an "Indemnified Person") from and against any losses, claims, damages or liabilities, joint or several, to which such Underwriter Indemnified Person may become subject, subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Statement or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein therein, not misleading, andor arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Prospectus or an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, subject in the light of the circumstances under which they were made, not misleading; and the Company hereby agrees to subsection (c) below, will reimburse each Underwriter such Indemnified Person for any all reasonable legal or and other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action or claim as and when such expenses are incurred; provided, however, that the Company shall not be liable to any such Indemnified Person in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon (i) an untrue statement or alleged untrue statement made in, or an omission or alleged omission made in the from, such Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Statement or Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives such Indemnified Person expressly for use therein or (ii) in any thereofthe case of the occurrence of an event of the type specified in Section 3(e), the use by the Indemnified Person of an outdated or defective Prospectus after the Company has provided to such Indemnified Person an updated Prospectus correcting the untrue statement or alleged untrue statement or omission or alleged omission giving rise to such loss, claim, damage or liability.
(b) Indemnification by the Investors and Underwriters. Each Underwriter Investor agrees, as a consequence of the inclusion of any of its Registrable Securities in a Registration Statement, and each underwriter, if any, which facilitates the disposition of Registrable Securities shall agree, as a consequence of facilitating such disposition of Registrable Securities, severally will and not jointly, to (i) indemnify and hold harmless the Company, its directors (including any person who, with his or her consent, is named in the Registration Statement as a director nominee of the Company), its officers who sign any Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which the Company or such other persons may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the such Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Statement or Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein 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, in the case of the Prospectus), not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives holder or underwriter expressly for use therein; and, subject to subsection and (cii) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 4 contracts
Sources: Registration Rights Agreement (Dynamicweb Enterprises Inc), Registration Rights Agreement (Network Connection Inc), Registration Rights Agreement (Sac Technologies Inc)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter Manager against any losses, claims, damages or liabilities, joint or several, to which such Underwriter Manager may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement, the Base Basic Prospectus, any Preliminary Disclosure Package, Prospectus, the Pricing Issuer Free Writing Prospectus or the Unscheduled Free Writing Prospectus, or any amendment or supplement to any thereofof the foregoing, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or any “road show” (as defined in Rule 433(h) under the Act), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter Manager for any legal or other expenses reasonably incurred by such Underwriter Manager in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the any Registration Statement, the Base Basic Prospectus, any Preliminary Disclosure Package, Prospectus, the Pricing Issuer Free Writing Prospectus or the Unscheduled Free Writing Prospectus, or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusof the foregoing, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives Managers expressly for use in any thereoftherein.
(b) Each Underwriter severally Manager will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement, the Base Basic Prospectus, any Preliminary Disclosure Package, Prospectus, the Pricing Issuer Free Writing Prospectus or the Unscheduled Free Writing Prospectus, or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusof the foregoing, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the such Registration Statement, the Base Basic Prospectus, any Preliminary Disclosure Package, Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, Unscheduled Free Writing Prospectus, amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives Manager expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred. The Company and the Managers agree that the Managers have not furnished any information expressly for use in any Registration Statement, Basic Prospectus, Disclosure Package, Prospectus, Issuer Free Writing Prospectus or Unscheduled Free Writing Prospectus, or any amendment or supplement to any of the foregoing, existing on the date of this Agreement (including the supplement to the Basic Prospectus to be filed with the Commission on the date of this Agreement).
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company Company, on the one hand hand, and the Underwriters of the Designated Securities applicable Manager, on the other other, from the offering of the Designated Securities Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company Company, on the one hand hand, and the Underwriters of the Designated Securities applicable Manager, on the other other, in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company Company, on the one hand hand, and such Underwriters the applicable Manager, on the other other, shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such UnderwritersManager, in each case as provided in Section 2(a)(iv) or in the relevant Terms Agreement, as applicable. 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 omissions omission to state a material fact relates to information supplied by the Company Company, on the one hand hand, or such Underwriters Manager, on the other other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters Managers agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters Managers 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 subsection (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 subsection (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 subsection (d), no Underwriter Manager shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by Shares sold through or to it and distributed pursuant to the public this Agreement were offered to the public exceeds the amount of any damages which such Underwriter Manager has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Managers’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their the respective underwriting obligations with respect number of Shares sold through or to such securities them pursuant to this Agreement and not joint.
(e) The obligations of the Company under this Section 9 7 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each Manager, each person, if any, who controls any Underwriter Manager within the meaning of the Act, Act and each affiliate of any Manager; and the obligations of the Underwriters Managers under this Section 9 7 shall be in addition to any liability which the respective Underwriters Managers may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 4 contracts
Sources: Equity Distribution Agreement (STORE CAPITAL Corp), Equity Distribution Agreement (STORE CAPITAL Corp), Equity Distribution Agreement (STORE CAPITAL Corp)
Indemnification and Contribution. (a) The Company will and each of the Guarantors will, jointly and severally, indemnify and hold harmless each Underwriter from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of of, or are is based upon an upon, any untrue statement or alleged untrue statement of a material fact contained in or the omission or alleged omission to state in (i) the Registration Statement, as amended or supplemented, a material fact required to be stated therein or necessary to make the Base Prospectus, statements therein not misleading or (ii) any Preliminary Prospectus, the Pricing Prospectus as amended or supplemented, the ProspectusDisclosure Package, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the ActRules and Regulations, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company shall and the Guarantors will not be liable under this Section 7(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter the Representatives, on behalf of Designated Securities through the Representatives Underwriters, expressly for use therein (which information is specified in any thereofSection 12 hereof).
(b) Each Underwriter severally severally, but not jointly, will indemnify and hold harmless the Company and each of the Guarantors against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company or any Guarantor or Guarantors may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein in (i) the Registration Statement, as amended or supplemented, a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any Preliminary Prospectus, the Prospectus as amended or supplemented, the Disclosure Package, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse the Company and any Guarantor or Guarantors, as the case may be, promptly after receipt of invoices from the Company and any Guarantor or Guarantors, as the case may be, for any legal or other expenses reasonably incurred by the Company and any Guarantor or Guarantors, as the case may be, in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Representatives, on behalf of such Underwriter through the Representatives Underwriter, expressly for use therein; and, subject to subsection therein (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company which information is specified in connection with investigating or defending any such action or claim as such expenses are incurredSection 12 hereof).
(c) Promptly after receipt by an any indemnified party under subsection (aSection 7(a) or (b7(b) above of notice of any claim or the commencement of any action, such the indemnified party shallwill, if a claim in respect thereof is to be made against one or more of the indemnifying party parties under such subsection, notify the each indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the each such indemnifying party shall will not relieve it from any liability which it may have under this Section 7 except to the indemnifying party extent it has been prejudiced in any material respect by such failure or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case If any such claim or action shall will be brought against any indemnified party party, and it shall notify the notifies each indemnifying party of the commencement thereof, the each such indemnifying party shall will be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any each other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the each indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the each such indemnifying party shall will not be liable to such the indemnified party under such subsection Section 7(a) or 7(b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection , except that (aA) or the Underwriters will have the right to employ a single counsel (b) above shall only be liable for the legal expenses of one plus a single local counsel for all indemnified parties in each jurisdiction in which different jurisdiction) to represent jointly the Underwriters who may be subject to liability arising out of any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the Company and any Guarantor or Guarantors, as the case may be, under Section 7(a) if (i) the employment thereof has been specifically authorized by the Company and any Guarantor or Guarantors, as the case may be, in writing, (ii) the Underwriters will have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company and any Guarantor or Guarantors, as the case may be, and in the judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company or any Guarantor or Guarantors, as the case may be, has failed to assume the defense of such action and employ counsel satisfactory to the Underwriters, in which event the fees and expenses of such separate counsel will be paid by the Company and such Guarantor or Guarantors, as the case may be, and (B) if the Company or any Guarantor is the indemnified party, the Company and any Guarantor will have the right to employ a single counsel (plus a single local counsel in each different jurisdiction) to represent jointly the Company or any Guarantor who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Company or any Guarantor against the Underwriters under Section 7(b) if (i) the employment thereof has been specifically authorized by the Underwriters, in writing, (ii) the Company or any Guarantor will have been advised by counsel that there may be one or more legal defenses available to the Company or any such Guarantor which are different from or additional to those available to the Underwriters, and in the judgment of such counsel it is advisable for the Company or any such Guarantor to employ separate counsel or (iii) the Underwriters have failed to assume the defense of such action and employ counsel satisfactory to the Company and any such Guarantor, in which event the fees and expenses of such separate counsel will be paid by the Underwriters. No indemnifying party under will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld or delayed), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such subsection claim or action) unless such settlement, compromise or consent (A) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent will not be unreasonably withheld or delayed), but if settled with the consent of each indemnifying party or if there be a final judgment for the plaintiff in any such action, each such indemnifying partyparty agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 7(a) or (b7(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in Section 7(a) or 7(b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other hand from the offering of the Notes or actions in respect thereof(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative fault of the Company and the Guarantors on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and such the Underwriters on the other shall hand will be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative Relative fault shall will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on and the one hand Guarantors or such the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company Company, each of the Guarantors and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (dSection 7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (dSection 7(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 the first sentence of this subsection (dSection 7(d) shall will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this Section 7(d). Notwithstanding the provisions of this subsection (dSection 7(d), no Underwriter shall will be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public investors were offered to the public investors exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 7(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 7(c) above).
(e) The obligations of the Company and the Guarantors under this Section 9 shall 7 will be in addition to any liability which that the Company and the Guarantors may otherwise have have, and shall will extend, upon the same terms and conditionsconditions set forth in this Section 7, to each officer the respective officers, directors and director affiliates of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 shall 7 will be in addition to any liability which that the respective Underwriters may otherwise have have, and shall will extend, upon the same terms and conditions, to each officer and director of the Company and each of the Guarantors (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company and each of the Guarantors who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 4 contracts
Sources: Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (OC Holding Company, LLC), Underwriting Agreement (O Reilly Automotive Inc)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter the Underwriters against any losses, claims, damages or liabilities, joint or several, to which such Underwriter the Underwriters may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter the Underwriters for any legal or other expenses reasonably incurred by such Underwriter the Underwriters in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any an Underwriter of Designated Securities through the Representatives you expressly for use in any thereoftherein.
(b) Each Underwriter The Underwriters, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any such amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such an Underwriter through the Representatives expressly you for use therein; and, subject to subsection (c) below, and will reimburse the Company Company, as appropriate, for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which that it may have to any indemnified party otherwise other than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company on the one hand and the Underwriters on the other agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (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 subsection (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 subsection (d), no Underwriter the Underwriters shall not be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has that the Underwriters have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities Underwriters’ obligation in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 8 shall be in addition to any liability which that the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter the Underwriters within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 4 contracts
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md), Underwriting Agreement (Huntington Bancshares Inc/Md), Underwriting Agreement (Huntington Bancshares Inc/Md)
Indemnification and Contribution. (a) The In the case of any offering registered pursuant to this Article III, the Company will agrees to indemnify and hold each Registering Stockholder, each underwriter, if any, of the Subject Securities under such registration and each person who controls any of the foregoing within the meaning of Section 15 of the Securities Act, and any officer, employee or partner of the foregoing, harmless each Underwriter against any and all losses, claims, damages damages, or liabilities, joint or several, liabilities (including reasonable legal fees and other reasonable expenses incurred in the investigation and defense thereof) to which such Underwriter they or any of them may become subject, subject under the Securities Act or otherwiseotherwise (collectively "Losses"), insofar as any such losses, claims, damages or liabilities (or actions in respect thereof) Losses shall arise out of or are shall be based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, registration statement relating to the Base Prospectus, any Preliminary Prospectus, sale of such Subject Securities (as amended if the Pricing Prospectus or Company shall have filed with the Prospectus, SEC any amendment or supplement to any thereof), or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection misleading or (cii) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, prospectus relating to the Base Prospectus, any Preliminary Prospectus, sale of such Subject Securities (as amended or supplemented if the Pricing Prospectus or Company shall have filed with the Prospectus, SEC any amendment thereof or supplement to any thereofthereto), or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading, ; provided that the indemnification contained in each case this Section 3.5 shall not apply to the extent, but only to the extent that such Losses which shall arise primarily out of or shall be based primarily upon any such untrue statement or alleged untrue statement statement, or any such omission or alleged omission was omission, which shall have been made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished in writing to the Company by the Registering Stockholders or any such Underwriter through underwriter, as the Representatives expressly case may be, specifically for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating the preparation of the registration statement or defending prospectus contained in the registration statement or any such action amendment thereof or claim supplement therein.
(b) In the case of each offering registered pursuant to this Article III, the Registering Stockholders and each underwriter, if any, participating therein shall agree, substantially in the same manner and to the same extent as set forth in the preceding paragraph, severally to indemnify and hold harmless the Company and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, and the directors and executive officers of the Company, with respect to any statement in or omission from such expenses are incurredregistration statement or prospectus contained in such registration statement (as amended or as supplemented, if amended or supplemented as aforesaid) if such statement or omission shall have been made in reliance upon and in conformity with information furnished in writing to the Company by the Registering Stockholders or such underwriter, as the case may be, specifically for use in connection with the preparation of such registration statement or prospectus contained in such registration statement or any such amendment thereof or supplement thereto.
(c) Promptly Each party indemnified under this Section 3.5 shall, promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, claim ("Claim") against such indemnified party shall, if a claim in respect thereof is to of which indemnity may be made against the indemnifying party under such subsectionsought hereunder, notify the indemnifying party in writing of the commencement thereof; but the omission . The failure of any indemnified party to so to notify the an indemnifying party shall not relieve the indemnifying party from any liability in respect of such Claim which it may have to any such indemnified party otherwise than under such subsection on account of the indemnity contained in this Section 3.5, unless (and only to in the extent such event) the indemnifying party has been was materially prejudiced by such omission so failure, and in no event shall such failure relieve the indemnifying party from any other liability which it may have to notifysuch indemnified party. In case any such action Claim in respect of which indemnification may be sought hereunder shall be brought against any indemnified party and it shall notify the an indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishmay desire, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with thereof through counsel reasonably satisfactory to such the indemnified party (who shall not, except with by notifying the consent indemnified party in writing of such election within 10 days after receipt of the indemnified party's initial notice of the Claim, be counsel to the indemnifying party), and, and after such notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection this Section 3.5 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof thereof, other than reasonable costs of investigation. The investigation (unless such indemnified party reasonably objects to such assumption on the grounds that there may be defenses available to it which are different from or in addition to those available to such indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An event the indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against reimbursed by the indemnifying party under for the reasonable expenses incurred in connection with retaining separate legal counsel). If the indemnifying party undertakes to defend against such subsection unless Claim within such 10-day period, the indemnifying party shall control the investigation, defense and settlement thereof; provided that (i) the indemnifying party shall use its reasonable efforts to defend and protect the interests of the indemnified party with respect to such Claim, (ii) the indemnified party, prior to or during the period in which the indemnifying party assumes control of such matter, may take such reasonable actions as the indemnified party deems necessary to preserve any and all rights with respect to such matter, without such actions being construed as a waiver of the indemnified party's rights to defense and indemnification pursuant to this Agreement, and (iii) the indemnifying party shall not, without the prior written consent of the indemnified party, consent to any settlement which (A) imposes any Liabilities on the indemnified party (other than those Liabilities which the indemnifying party agrees to promptly pay or discharge), and (B) with respect to any non- monetary provision of such settlement, would be likely, in the indemnified party's reasonable judgment, to have an adverse effect on the business operations, assets, properties or prospects of any Stockholder (in the event that a Registering Stockholder or any of its Affiliates is effected with the indemnified party), or the Company (in the event that the Company is an indemnified party), or such indemnified party. If the indemnifying party does not undertake within such 10-day period to defend against such Claim, then the indemnifying party shall have the right to participate in any such defense at its sole cost and expense, but the indemnified party shall control the investigation, defense and settlement thereof (provided that the indemnified party may not settle any such Claim without obtaining the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld by the indemnifying party; provided that in the event that the indemnifying party is in material breach at such time of the provisions of this Section 3.5, then the indemnified party shall not be obligated to obtain such prior written consent of the indemnifying party) at the reasonable cost and expense of the indemnifying party (which shall be paid by the indemnifying party promptly upon presentation by the indemnified party of invoices or other documentation evidencing the amounts to be indemnified). In addition to the foregoing, no indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which the indemnified party could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such claim or proceeding.
(d) If the indemnification provided for in this Section 9 3.5 is unavailable to an indemnified party or is insufficient to hold harmless an such indemnified party under subsection (a) or (b) above harmless from any Losses in respect of any losses, claims, damages or liabilities which this Section 3.5 would otherwise apply by its terms (or actions in respect thereof) referred to thereinother than by reason of exceptions provided herein), then each applicable indemnifying party party, in lieu of indemnifying such indemnified party, shall have a joint and several obligation to contribute to the amount paid or payable by such indemnified party as a result of such lossesLosses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by and fault of the Company indemnifying party, on the one hand hand, and the Underwriters of the Designated Securities such indemnified party, on the other from the offering of the Designated Securities to which such losshand, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions offering to which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), contribution relates as well as any other relevant equitable considerations. The relative benefits benefit shall be determined by reference to, among other things, the amount of proceeds received by each party from the Company on the one hand and offering to which such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriterscontribution relates. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other each party's relative knowledge and the parties’ relative intent, knowledge, access to information concerning the matter with respect to which the claim was asserted, and the opportunity to correct or and prevent such any statement or omission. The Company and amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any investigation or proceeding, to the Underwriters extent such party would have been indemnified for such expenses if the indemnification provided for in this Section 3.5 was available to such party.
(e) The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection (d) Section 3.5 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionimmediately preceding paragraph. No person 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 obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 3 contracts
Sources: Restructuring, Financing and Distribution Agreement (Lockheed Martin Corp), Stockholders Agreement (Loral Corp /Ny/), Stockholders Agreement (Lockheed Martin Corp)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(ba) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(cb) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(dc) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(ed) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 3 contracts
Sources: Underwriting Agreement (Hershey Co), Underwriting Agreement (Hershey Co), Underwriting Agreement (Hershey Co)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter, its agents, officers and directors, and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus or the Prospectus, the Prospectus as amended or supplemented and any other prospectus relating to the Designated Securities, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Pricing Prospectus or the Prospectus, the Prospectus as amended or supplemented and any amendment or supplement other prospectus relating to any thereofthe Designated Securities, or any Issuer Free Writing Prospectussuch amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereofthe Prospectus as amended or supplemented relating to such Designated Securities.
(b) Each Underwriter severally will indemnify and hold harmless the Company, its agents, officers and directors, and each person, if any, who controls the Company within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Base Prospectus, any Preliminary Pricing Prospectus, the Pricing Prospectus as amended or supplemented, any Issuer Free Writing Prospectus and any other prospectus relating to the ProspectusDesignated Securities, or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Base Prospectus, any Preliminary Pricing Prospectus, the Pricing Prospectus as amended or the Prospectussupplemented, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company it in connection with investigating or defending any such action or claim as such expenses are incurred. The Company hereby acknowledges and agrees that the information furnished to the Company by the Underwriters through the Representatives expressly for use in the Registration Statement (or any amendment thereto), or in any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement to any of the foregoing), consists exclusively of the following information appearing under the caption “Underwriting” in the Basic Prospectus and the Prospectus: (i) the information regarding the concession and reallowance appearing in the third paragraph under such caption, (ii) the information regarding stabilization, syndicate covering transactions and penalty bids appearing in the sixth, seventh and eighth paragraphs under such caption (but only insofar as such information concerns the Underwriters) and (iii) the information regarding market making by the Underwriters appearing in the fifth paragraph under such caption.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. No indemnified party shall, without the written consent of the indemnifying partyparty (such written consent not to be unreasonably withheld), effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending action or claim in respect of which indemnification or contribution is sought hereunder if the indemnifying party has assumed the defense of such action or claim.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company Company, less the total underwriting compensation paid by the Company, bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities Securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 3 contracts
Sources: Underwriting Agreement (Everest Reinsurance Holdings Inc), Underwriting Agreement (Everest Reinsurance Holdings Inc), Underwriting Agreement (Everest Reinsurance Holdings Inc)
Indemnification and Contribution. (a) The Company will shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act, against any lossesand all loss, claimsliability, damages claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or liabilitiesdefending against any litigation, joint commenced or severalthreatened, to which such Underwriter or any claim whatsoever or in connection with any investigation or inquiry of, or action or proceeding that may become subjectbe brought against, under the Act or otherwiserespective indemnified parties, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise arising out of or are based upon an any breach of the representations and warranties of the Company made in this Agreement or any untrue statement statements or alleged untrue statement statements of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Disclosure Package or the Prospectus, any amendment application or supplement other document filed in any jurisdiction in order to qualify all or any thereofpart of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they are made, not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company foregoing indemnity shall not be liable apply in respect of any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; andin any Preliminary Prospectus, subject the Registration Statement or Prospectus, or any amendment or supplement thereto, or in any application or in any communication to subsection the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of such Underwriter if a copy of the Prospectus (cas then amended and supplemented) belowwas not sent or given by or on behalf of such Underwriter to the person asserting any losses, will reimburse claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of the Company for under this Section 10(a) will be in addition to any legal or other expenses reasonably incurred by liability the Company may otherwise have. The indemnification obligations of the Company and the Selling Shareholders shall be several and not joint.
(b) Each Selling Shareholder shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act against any and all loss, liability, claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever or in connection with investigating any investigation or defending any such inquiry of, or action or claim proceeding that may be brought against, the respective indemnified parties, arising out of or based upon any breach of the representations and warranties of such Selling Shareholder made in this Agreement or any untrue statements or alleged untrue statements of material fact contained in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any jurisdiction in order to qualify all or any part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or the omission or alleged omission from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to each Underwriter by such Selling Shareholder expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of the Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of the Underwriter to the person asserting any losses, claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such expenses are incurredlosses, claims, damages or liabilities. The obligations of each Selling Shareholder under this Section 10(b) will be in addition to any liability such Selling Shareholder may otherwise have. The indemnification obligations of the Company and each Selling Shareholder shall be several and not joint.
(c) Promptly after receipt Each Underwriter severally and not jointly shall indemnify and hold harmless the Company, each Selling Shareholder, each of the directors of the Company, each of the officers of the Company who shall have signed the Registration Statement, and each other person, if any, who controls the Company or such Selling Shareholder within the meaning of the Act and the Exchange Act, to the same extent as the foregoing indemnities from the Company and each Selling Shareholder to the Underwriters, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to the Company and Selling Shareholders by an indemnified party any Underwriter through the Representative expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be. The obligations of each Underwriter under subsection this Section 10(c) will be in addition to any liability which such Underwriter may otherwise have.
(ad) If any action, inquiry, investigation or proceeding is brought against any person in respect of which indemnification may be sought pursuant to Section 10(a), (b) or (bc) above hereof, such person (hereinafter called the “indemnified party”) shall, promptly after notification of, or receipt of notice service of the commencement of any process for, such action, such indemnified inquiry, investigation or proceeding, notify in writing the party shall, if a claim in respect thereof or parties against whom indemnification is to be made against sought (hereinafter called the “indemnifying party”) of the institution of such action, inquiry, investigation or proceeding. The indemnifying party, upon the request of the indemnified party, shall assume the defense of such action, inquiry, investigation or proceeding, including, without limitation, the employment of counsel (reasonably satisfactory to such indemnified party) and payment of expenses. No indemnification provided for in this Section 10 shall be available to any indemnified party who shall fail to give such notice if the indemnifying party under does not have knowledge of such subsectionaction, notify inquiry, investigation or proceeding to the extent that such indemnifying party in writing of has been materially prejudiced by the commencement thereof; failure to give such notice, but the omission to so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only this Section 10. Such indemnified party shall have the right to the extent such indemnifying party has been prejudiced by such omission so to notify. In case employ its or their own counsel in any such action case, but the fees and expenses of such counsel shall be brought against any at the expense of such indemnified party and it unless the employment of such counsel shall notify have been authorized in writing by the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly in connection with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to of such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, action or if the indemnifying party shall not have, within a reasonable period of time in light of the circumstances, employed counsel reasonably satisfactory to the indemnified party, to have charge of the defense of such action, inquiry, investigation or proceeding or if such indemnified party or parties shall have been advised by counsel that there may be liable a conflict between the positions of the indemnifying party or parties and of the indemnified party or parties or that there may be legal defenses available to such indemnified party under or parties different from or in addition to those available to the indemnifying party or parties, in any of which events the indemnified party or parties shall be entitled to select counsel to conduct the defense to the extent determined by such subsection for any legal counsel to be necessary to protect the interests of the indemnified party or parties, and the reasonable fees and expenses of other such counsel or any other expenses, in each case subsequently incurred shall be borne by such indemnified the indemnifying party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable responsible for the legal expenses fees and disbursements of only one such counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An so engaged by the indemnified party under subsection (a) or (b) above shall not enter into parties as a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If group. Expenses covered by the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.this
Appears in 3 contracts
Sources: Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter, the directors and officers of each Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement for the registration of the Securities as originally filed or in any amendment thereof, the Base Prospectus, or in any Preliminary Prospectus, the Pricing Prospectus or the Final Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or the information contained in the final term sheet required to be prepared and filed pursuant to Rule 433(dSection 4(b) under the Acthereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly specifically for use in connection with the preparation thereof. This indemnity agreement will be in addition to any thereofliability which the Company may otherwise have.
(b) Each Underwriter severally will and not jointly agrees to indemnify and hold harmless the Company against any lossesCompany, claimseach of its directors and officers, damages or liabilities to which and each person who controls the Company may become subject, under within the meaning of either the Act or otherwisethe Exchange Act, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentsame extent as the foregoing indemnity from the Company in Section 7(a) hereto, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives expressly specifically for use therein; andin the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (A) in the last paragraph of the cover page regarding delivery of the Securities and (B) under the heading “Underwriting (Conflicts of Interest)”: (i) the list of Underwriters and their respective participation in the sale of the Securities and (ii) the five paragraphs related to over-allotments, subject syndicate covering transactions, stabilization transactions and penalty bids constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to subsection (c) below, will reimburse in the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredforegoing indemnity.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 7 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any liability obligations to any indemnified party which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel satisfactory to such indemnified party (who shall not, except with the consent of to represent the indemnified partyparty in such action; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume appoint counsel to defend such action and approval by the defense thereofindemnified party of such counsel, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 7 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs unless (i) the use of investigation. The counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel), approved by the Representatives in the case of paragraph (a) of this Section 7, representing the indemnified parties under subsection such paragraph (a) who are parties to such action), (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iv) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. An indemnifying party shall not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) or (b) above shall only be liable of this Section 7 is due in accordance with its terms but is for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into reason held by a settlement of any litigation in respect of which a claim is court to be made against unavailable from the indemnifying party under such subsection unless such settlement is effected with Company on grounds of policy or otherwise, the consent of Company and the indemnifying party.
(d) If Underwriters shall contribute to the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any aggregate losses, claims, damages or and liabilities (including legal or actions other expenses reasonably incurred in respect thereofconnection with investigation or defending same) referred (collectively “Losses”) to therein, then each indemnifying party shall contribute to which the amount paid Company and one or payable by such indemnified party as a result more of such losses, claims, damages or liabilities (or actions in respect thereof) the Underwriters may be subject in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and by the Underwriters of the Designated Securities on the other from the offering of the Designated Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to which reflect not only such loss, claim, damage or liability (or action in respect thereof) relates relative benefits but also the relative fault of the Company on the one hand and of the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as equal to the total net proceeds from such the offering (before deducting expenses) received by it, and benefits received by the Company bear Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by such Underwriterscommissions, in each case as set forth on the cover page of the Final Prospectus. The relative Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied provided by the Company on the one hand or such the Underwriters on the other other, the intent of the parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimabove. Notwithstanding the provisions of this subsection paragraph (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend7, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any an Underwriter within the meaning of the ActAct shall have the same rights to contribution as such Underwriter, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the preceding sentence of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d).
Appears in 3 contracts
Sources: Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, the Disclosure Package, any Company Additional Written Communication or any “issuer free writing prospectus” (as defined in Rule 433(h) under the Securities Act) relating to the offering of the Securities, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or Prospectus, the Prospectus, or any amendment or supplement to thereto, the Disclosure Package, any thereof, Company Additional Written Communication or any Issuer Free Writing Prospectussuch issuer free writing prospectus, made in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereoftherein.
(b) Each Underwriter will, severally will and not jointly, indemnify and hold harmless the Company against any lossesto the same extent as the indemnity set forth in Section 8(a) hereof, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, but only insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein state, a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (aSection 8(a) or (b8(b) above hereof of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionSection 8(a) or 8(b), as the case may be, notify the indemnifying party in writing of the commencement thereof; but provided, that the omission to so notify the indemnifying party shall not relieve it from any liability that it may have under this Section 8, except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such omission; and provided, further, that the omission to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to Section 8(a) or 8(b), as the extent such indemnifying party has been prejudiced by such omission so to notifycase may be. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection Section 8(a) or 8(b), as the case may be, for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The ; provided, however, that any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party under subsection (a) and the indemnified party shall have mutually agreed to the retention of such counsel or (bii) above the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that, notwithstanding the preceding sentence of this Section 8(c), the indemnifying party shall only not be liable for the legal reasonable fees and expenses of more than one separate firm (in addition to not more than one separate local counsel for all indemnified parties in each any jurisdiction in which any claim or action is brought. An the indemnified party under subsection (arequires representation by separate counsel) for all such indemnified parties. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or (b) above shall not enter into a settlement compromise of, or consent to the entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a claim statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. An indemnifying party shall not be liable for any settlement effected by an indemnified party without its prior written consent, but if the settlement is to be made against with such consent, the indemnifying party under agrees to indemnify the indemnified party from and against any loss or liability by reason of such subsection unless such settlement is effected with the consent of the indemnifying partysettlement.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 8(a) or (b8(b) above hereof in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company Company, on the one hand hand, and the Underwriters of the Designated Securities Underwriters, on the other other, from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under Section 8(c) hereof, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company Company, on the one hand hand, and the Underwriters of the Designated Securities Underwriters, on the other other, in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company Company, on the one hand hand, and such Underwriters the Underwriters, on the other other, shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth on the cover page of the Prospectus. 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 omissions omission to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading relates to information supplied by the Company Company, on the one hand hand, or such Underwriters by the Underwriters, on the other other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (dSection 8(d) were determined by pro rata allocation (even if the Underwriters 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 subsection (dSection 8(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 subsection (dSection 8(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 subsection (dSection 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 8(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each director or officer and director of any Underwriter underwriter and to each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and any affiliate (within the meaning of Rule 405 under the Securities Act, ) of any Underwriter; and the obligations of the Underwriters under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company, to each officer of the Company who executed the Registration Statement and to each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
Appears in 3 contracts
Sources: Underwriting Agreement (Best Buy Co Inc), Underwriting Agreement (Best Buy Co Inc), Underwriting Agreement (Best Buy Co Inc)
Indemnification and Contribution. (a) The Subject to the limitations in this paragraph below, the Company will and the Operating Partnership jointly and severally agree to indemnify and hold harmless the Representative and each other Underwriter, the directors, officers, employees, affiliates and agents of each Underwriter, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages or liabilitiesdamages, joint or severalliabilities and expenses, to which such Underwriter may become subjectincluding reasonable costs of investigation and attorneys’ fees and expenses (collectively, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof“Damages”) arise arising out of or are based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Prospectus, in the Registration Statement, the Base ProspectusTime of Sale Information, any Preliminary Issuer Free Writing Prospectus, the Pricing Prospectus or the Prospectus, in any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, any road show as defined in Rule 433(h) under the Securities Act or arise out of or are based upon the (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading. This indemnification shall be in addition to any liability that the Company or the Operating Partnership may otherwise have. If any action or claim shall be brought against any Underwriter or any person controlling any Underwriter in respect of which indemnity may be sought jointly or severally against the Company and the Operating Partnership, andsuch Underwriter or such controlling person shall promptly notify in writing the party(s) against whom indemnification is being sought (the “indemnifying party” or “indemnifying parties”), subject and such indemnifying party or parties shall assume the defense thereof, including the employment of counsel reasonably acceptable to subsection (c) below, will reimburse each such Underwriter for any legal or other such controlling person and the payment of all reasonable fees of and expenses reasonably incurred by such counsel. Such Underwriter or any such controlling person shall have the right to employ separate counsel in connection with investigating or defending any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter or claim as such expenses are incurred; providedcontrolling person, howeverunless (i) the indemnifying party(s) has (have) agreed in writing to pay such fees and expenses, (ii) the indemnifying party(s) has (have) failed to assume the defense and employ counsel reasonably acceptable to the Underwriter or such controlling person or (iii) the named parties to any such action (including any impleaded parties) include both such Underwriter or such controlling person and the indemnifying party(s), and such Underwriter or such controlling person shall have been advised by its counsel that one or more legal defenses may be available to the Underwriter that may not be available to the Company or the Operating Partnership, or that representation of such indemnified party and any indemnifying party(s) by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the indemnifying party(s) shall not have the right to assume the defense of such action on behalf of such Underwriter or such controlling person (but the Company and the Operating Partnership shall not be liable for the fees and expenses of more than one counsel for the Underwriters and such controlling persons)). The indemnifying party(s) shall not be liable for any settlement of any such action effected without its (their several) written consent, but if settled with such written consent, or if there be a final judgment for the plaintiff in any such case action, the indemnifying party(s) agree(s) to the extent that indemnify and hold harmless any Underwriter and any such controlling person from and against any loss, claim, damage damage, liability or liability arises out expense by reason of such settlement or is based upon an untrue statement judgment, but in the case of a judgment only to the extent stated in the first paragraph of this Section 10. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company and the Operating Partnership, their respective directors and their respective officers who sign the Registration Statement and any person who controls the Company or alleged untrue statement the Operating Partnership within the meaning of Section 15 of the Securities Act or omission Section 20 of the Exchange Act, to the same extent as the foregoing several indemnity from the Company and the Operating Partnership to each Underwriter, but only with respect to information furnished in writing by or alleged omission made on behalf of such Underwriter through the Representative expressly for use in the Registration Statement, the Base Prospectus, the Time of Sale Information, any Issuer Free Writing Prospectus or the Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to thereto, which is specified in Section 15. If any thereofaction or claim shall be brought or asserted against the Company or the Operating Partnership, any of their respective directors, any of their respective officers or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are controlling person based upon an untrue statement or alleged untrue statement of a material fact contained in on the Registration Statement, the Base Prospectus, any the Time of Sale Information or the Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished respect of which indemnity may be sought against any Underwriter pursuant to this paragraph, such Underwriter shall have the rights and duties given to the Company and the Operating Partnership by the immediately preceding paragraph (except that if the Company and the Operating Partnership shall have assumed the defense thereof such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it be required to do so, but may have to any indemnified party otherwise than under such subsection employ separate counsel therein and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume in the defense thereof, with but the fees and expenses of such counsel satisfactory shall be at such Underwriter’s expense), and the Company and the Operating Partnership, their respective directors, their respective officers and any such controlling persons, shall have the rights and duties given to such indemnified party the Underwriters by the immediately preceding paragraph. In any event, (who shall i) the Company or the Operating Partnership will not, except with without the prior written consent of the indemnified partyRepresentative, be counsel settle or compromise or consent to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment in any proceeding or threatened claim, action, suit or proceeding in respect of which the indemnification may be sought hereunder (whether or not the Representative or any person who controls the Representative within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act is a claim is party to be made against the indemnifying party under such subsection claim, action, suit or proceeding) unless such settlement is effected with settlement, compromise or consent includes an unconditional release of all Underwriters and such controlling persons from all liability arising out of such claim, action, suit or proceeding and (ii) the Underwriters will not, without the prior written consent of the indemnifying party.
(d) Company or the Operating Partnership, as the case may be, settle or compromise or consent to the entry of any judgment in any proceeding or threatened claim, action, suit or proceeding in respect of which the indemnification may be sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Company or the Operating Partnership, as the case may be, from all liability arising out of such claim, action, suit or proceeding. If the indemnification provided for in this Section 9 10 is unavailable to or insufficient for any reason whatsoever to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) Damages referred to thereinherein, then each an indemnifying party party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesDamages (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Operating Partnership on the one hand, claimsand the Underwriters on the other hand, damages from the offering and sale of the Notes or liabilities (or actions in respect thereofii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative and several fault of the Company and the Operating Partnership on the one hand hand, and the Underwriters of the Designated Securities on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Damages as well as any other relevant equitable considerations. The relative and several benefits received by the Company and the Operating Partnership on the one hand hand, and such the Underwriters on the other hand, shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company and the Operating Partnership on the one hand, and the Underwriters on the other hand, 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 omissions omission to state a material fact relates to information supplied by the Company and the Operating Partnership on the one hand hand, or such by the Underwriters on the other hand and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Operating Partnership and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were Section 10 was determined by a pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this subsection (d)the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) Damages referred to above in this subsection (d) the immediately preceding paragraph shall be deemed to include include, subject to the limitations set forth above, 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 subsection (d)Section 10, no Underwriter shall be required to contribute any amount in excess of the amount of the underwriting commissions received by which such underwriter in connection with the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionpublic. No person 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 Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute pursuant to this Section 10 are several in proportion to the respective aggregate principal amount of the Notes set forth opposite their respective underwriting obligations with respect to such securities names in Schedule I hereto and not joint.
(e) The obligations of the Company . Any Damages for which an indemnified party is entitled to indemnification or contribution under this Section 9 10 shall be paid by the indemnifying party to the indemnified party as Damages are incurred after receipt of reasonably itemized invoices therefor. The indemnity, contribution and reimbursement agreements contained in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, this Section 10 and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have representations and shall extend, upon the same terms and conditions, to each officer and director warranties of the Company and to each personthe Operating Partnership set forth in this Agreement shall remain operative and in full force and effect, if anyregardless of (i) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter, who controls the Company within and the meaning Operating Partnership and their respective directors, their respective officers or any person controlling the Company and the Operating Partnership, (ii) acceptance of any Notes and payment therefor hereunder and (iii) any termination of this Agreement. A successor to any Underwriter or any person controlling any Underwriter, or to the Company, the Operating Partnership, their respective directors, their respective officers or any person controlling the Company or the Operating Partnership, shall be entitled to the benefits of the Actindemnity, contribution and reimbursement agreements contained in this Section 10.
Appears in 3 contracts
Sources: Underwriting Agreement (NexPoint Real Estate Finance, Inc.), Underwriting Agreement (NexPoint Real Estate Finance, Inc.), Underwriting Agreement (NexPoint Real Estate Finance, Inc.)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon the failure to have an effective Registration Statement relating to the Securities or the failure to satisfy the prospectus delivery requirements of the Securities Act because the Company failed to provide the Underwriters with a Prospectus for delivery, or arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Disclosure Package or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the Securities Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, andor arise out of or are based upon the engagement of the Underwriters pursuant to, subject or the performance of the Underwriters of their respective services (including any such services performed on or prior to subsection (cthe date hereof) belowcontemplated by, this Agreement, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Disclosure Package, the Registration Statement or the Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use therein. The Underwriters shall incur no liability to and shall be indemnified and held harmless by the Company for, or in respect of, any thereofactions taken, omitted to be taken or suffered to be taken in the absence of bad faith, gross negligence or willful misconduct by the Underwriters in reasonable reliance upon the advice of counsel satisfactory to it or instructions from the Trustee (pursuant to the Indenture) or the Company.
(b) Each Underwriter Underwriter, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Disclosure Package or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, Disclosure Package or the Pricing Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party (or such other release of the indemnified party as shall be satisfactory to the indemnified party) from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other hand in connection with the offering of the Securities shall be deemed to be in the same proportion respective proportions as the total net proceeds from such offering (before deducting expenses) received by the Company bear to from the sale of the Securities and the total underwriting discounts and commissions received by such Underwritersthe Underwriters with respect to the offering of the Securities, bear to the aggregate offering price of the Securities. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters 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 Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten underwriting discounts and commissions received by it and distributed such Underwriter with respect to the public were offered to offering of the public Securities exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each director and officer and director of any each Underwriter and to each person, if any, who controls any an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Underwriters; and the obligations of the Underwriters under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
Appears in 3 contracts
Sources: Underwriting Agreement (Travelers Companies, Inc.), Underwriting Agreement (Travelers Companies, Inc.), Underwriting Agreement (Travelers Companies, Inc.)
Indemnification and Contribution. (a) The Company will shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act, against any lossesand all loss, claimsliability, damages claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or liabilitiesdefending against any litigation, joint commenced or severalthreatened, to which such Underwriter or any claim whatsoever or in connection with any investigation or inquiry of, or action or proceeding that may become subjectbe brought against, under the Act or otherwiserespective indemnified parties, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise arising out of or are based upon an any breach of the representations and warranties of the Company made in this Agreement or any untrue statement statements or alleged untrue statement statements of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Disclosure Package or the Prospectus, any amendment application or supplement other document filed in any jurisdiction in order to qualify all or any thereofpart of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they are made, not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company foregoing indemnity shall not be liable apply in respect of any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; andin any Preliminary Prospectus, subject the Registration Statement or Prospectus, or any amendment or supplement thereto, or in any application or in any communication to subsection the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of such Underwriter if a copy of the Prospectus (cas then amended and supplemented) belowwas not sent or given by or on behalf of such Underwriter to the person asserting any losses, will reimburse claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of the Company for under this Section 10(a) will be in addition to any legal or other expenses reasonably incurred by liability the Company may otherwise have. The indemnification obligations of the Company and the Selling Shareholder shall be several and not joint.
(b) The Selling Shareholder shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act against any and all loss, liability, claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever or in connection with investigating any investigation or defending any such inquiry of, or action or claim proceeding that may be brought against, the respective indemnified parties, arising out of or based upon any breach of the representations and warranties of the Selling Shareholder made in this Agreement or any untrue statements or alleged untrue statements of material fact contained in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any jurisdiction in order to qualify all or any part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or the omission or alleged omission from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to each Underwriter by such Selling Shareholder expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of the Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of the Underwriter to the person asserting any losses, claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such expenses are incurredlosses, claims, damages or liabilities. The obligations of each Selling Shareholder under this Section 10(b) will be in addition to any liability such Selling Shareholder may otherwise have. The indemnification obligations of the Company and the Selling Shareholder shall be several and not joint.
(c) Promptly after receipt Each Underwriter severally and not jointly shall indemnify and hold harmless the Company, the Selling Shareholder, each of the directors of the Company, each of the officers of the Company who shall have signed the Registration Statement, and each other person, if any, who controls the Company or the Selling Shareholder within the meaning of the Act and the Exchange Act, to the same extent as the foregoing indemnities from the Company and the Selling Shareholder to the Underwriters, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to the Company and the Selling Shareholder by an indemnified party any Underwriter through the Representative expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be. The obligations of each Underwriter under subsection this Section 10(c) will be in addition to any liability which such Underwriter may otherwise have.
(ad) If any action, inquiry, investigation or proceeding is brought against any person in respect of which indemnification may be sought pursuant to Section 10(a), (b) or (bc) above hereof, such person (hereinafter called the “indemnified party”) shall, promptly after notification of, or receipt of notice service of the commencement of any process for, such action, such indemnified inquiry, investigation or proceeding, notify in writing the party shall, if a claim in respect thereof or parties against whom indemnification is to be made against sought (hereinafter called the “indemnifying party”) of the institution of such action, inquiry, investigation or proceeding. The indemnifying party, upon the request of the indemnified party, shall assume the defense of such action, inquiry, investigation or proceeding, including, without limitation, the employment of counsel (reasonably satisfactory to such indemnified party) and payment of expenses. No indemnification provided for in this Section 10 shall be available to any indemnified party who shall fail to give such notice if the indemnifying party under does not have knowledge of such subsectionaction, notify inquiry, investigation or proceeding to the extent that such indemnifying party in writing of has been materially prejudiced by the commencement thereof; failure to give such notice, but the omission to so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only this Section 10. Such indemnified party shall have the right to the extent such indemnifying party has been prejudiced by such omission so to notify. In case employ its or their own counsel in any such action case, but the fees and expenses of such counsel shall be brought against any at the expense of such indemnified party and it unless the employment of such counsel shall notify have been authorized in writing by the indemnifying party in connection with the defense of the commencement thereof, such action or if the indemnifying party shall be entitled not have, within a reasonable period of time in light of the circumstances, employed counsel reasonably satisfactory to participate therein andthe indemnified party, to have charge of the extent defense of such action, inquiry, investigation or proceeding or if such indemnified party or parties shall have been advised by counsel that it shall wish, jointly with any other there may be a conflict between the positions of the indemnifying party similarly notified, to assume or parties and of the defense thereof, with counsel satisfactory indemnified party or parties or that there may be legal defenses available to such indemnified party (who or parties different from or in addition to those available to the indemnifying party or parties, in any of which events the indemnified party or parties shall notbe entitled to select counsel to conduct the defense to the extent determined by such counsel to be necessary to protect the interests of the indemnified party or parties, except with and the reasonable fees and expenses of such counsel shall be borne by the indemnifying party. The indemnifying party shall be responsible for the fees and disbursements of only one such counsel so engaged by the indemnified party or parties as a group. Expenses covered by the indemnification in this Section 10 shall be paid by the indemnifying party promptly after written request is submitted by the indemnified party. In the event that it is determined that the indemnified party was not entitled to receive payments for expenses pursuant to this Section 10, the indemnified party shall return all sums that have been paid pursuant hereto. No indemnifying party shall, without the prior written consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying effect any settlement of any pending or threatened action in respect of which any indemnified party to is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes an unconditional release of its election so such indemnified party from all liability on any claims that are the subject matter of such action. Anything in this Section 10 to assume the defense thereof, the contrary notwithstanding an indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses settlement of other counsel or any other expensesa claim affected without its written consent, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above consent shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying partyunreasonably withheld.
(de) If the indemnification provided for in this Section 9 10 is unavailable to or insufficient to hold harmless an indemnified party under subsection Section 10(a), (ab) or (bc) above hereof in respect of any losses, liabilities, claims, damages or liabilities expenses (or actions actions, inquiries, investigations or proceedings in respect thereof) referred to therein, except by reason of the failure to give notice as required in Section 10(d) hereof (provided that the indemnifying party does not have knowledge of the action, inquiry, investigation or proceeding and to the extent such party has been materially prejudiced by the failure to give such notice), then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, liabilities, claims, damages or liabilities expenses (or actions actions, inquiries, investigations or proceedings in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on Company, the one hand Selling Shareholder, and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to which such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on Company, the one hand Selling Shareholder, and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claimsliabilities, damages claims or liabilities expenses (or actions actions, inquiries, investigations or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on and the one hand and such Underwriters on the other Selling Shareholder shall be deemed to be in the same proportion as equal to the total net proceeds from such the offering (before deducting expenses) received by them, respectively, and benefits received by the Company bear Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by such Underwriterscommissions, in each case as set forth on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on Company, the one hand Selling Shareholder, or such the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, the Selling Shareholder, and the Underwriters agree that it would not be just and equitable if contribution pursuant contributions to this subsection (dSection 10(e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (dSection 10(e). The amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages or liabilities expenses (or actions actions, inquiries, investigations or proceedings in respect thereof) referred to above in this subsection (dSection 10(e) 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 subsection (dSection 10(e), (i) no Underwriter shall not be required to contribute any amount in excess of the amount by which the total price at which the underwriting discounts and commissions applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which Shares purchased by such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Underwriter, and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 3 contracts
Sources: Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.), Underwriting Agreement (Gas Natural Inc.)
Indemnification and Contribution. (a) The In the event of a registration of any Warrant Shares under the Act pursuant to this Section 12, the Company will indemnify and hold harmless harmless, to the fullest extent permitted by law, each Underwriter Holder selling Warrant Shares thereunder, each underwriter thereunder, and each other person, if any, who controls such selling Holder of Warrant Shares or underwriter within the meaning of the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against any losses, claims, damages or liabilitiesdamages, liabilities and expenses, joint or for several, to which such Underwriter selling Holder, underwriter or controlling person may become subject, subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement under which such Warrant Shares were registered under the Registration Statement, the Base ProspectusAct pursuant to Section 12, any Preliminary Prospectuspreliminary prospectus or final prospectus contained therein, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will pay or reimburse each Underwriter such selling Holder, each such underwriter and each such controlling person for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall (i) will not be liable in any such case if and to the extent that (A) any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in the Registration Statement, the Base Prospectusconformity with information furnished by any such selling Holder, any Preliminary Prospectussuch underwriter or any such controlling person, as the Pricing Prospectus or the Prospectuscase may be, any in writing specifically for use in such registration statement, prospectus, amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(bB) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue to such statement, alleged statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action directly relates, the final prospectus for such registration statement corrected in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in all material respects such lossesstatement alleged statement, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions omission and a copy of such final prospectus was not sent or given by or on behalf of such Holder (or otherwise delivered in accordance with applicable law or regulation) at or prior to state a material fact relates to information supplied by the Company on confirmation of the one hand or sale of Warrant Shares of such Underwriters on the other Holder and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would (ii) will not be just and equitable liable for amounts paid in settlement of any such loss, claim, damage, liability or action if contribution such settlement is effected without the consent of the Company, such consent not to be unreasonably withheld or delayed.
(b) In the event of a registration of any Warrant Shares under the Act pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (d). The amount paid or payable by an indemnified party as a result of the lossesSection 12, claimseach Holder selling Warrant Shares thereunder, damages or liabilities (or actions in respect thereof) referred to above in this subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities severally and not joint.
(e) The obligations of jointly, will indemnify and hold harmless the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extendCompany, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act., each officer of the Company who signs the registration statement, each director of the Company, each underwriter and each person who controls any underwriter within the meaning of the Act, against all losses, claims, damages or liabilities, joint or several, to which the Company or such officer, director, underwriter or controlling person may become subject under the Act or otherwise, but only to the extent that such losses, claims, damages or liabilities (or actions in respect
Appears in 3 contracts
Sources: Warrant Agreement (Educational Video Conferencing Inc), Warrant Agreement (Educational Video Conferencing Inc), Warrant Agreement (Showpower Inc)
Indemnification and Contribution. (a) The Company will and its subsidiaries, jointly and severally, shall indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base ProspectusGeneral Disclosure Package, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer an individual Issuer-Represented Limited Use Free Writing Prospectus or any “issuer information” filed Testing-the-Waters Communication when considered together with the General Disclosure Package, or required to be filed pursuant to Rule 433(d) under the Actany amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter such indemnified party for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that neither the Company or its subsidiaries shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, the Base ProspectusGeneral Disclosure Package, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, an individual Issuer-Represented Limited Use Free Writing Prospectus or any Testing-the-Waters Communication when considered together with the General Disclosure Package, or any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use therein (provided that the Company and the Underwriters hereby acknowledge and agree that the only information that the Underwriters have furnished to the Company specifically for inclusion in any thereofPreliminary Prospectus, the Registration Statement, the General Disclosure Package, the Prospectus, individual Issuer-Represented Limited Use Free Writing Prospectus or any Testing-the-Waters Communication when considered together with the General Disclosure Package, or any amendment or supplement thereto, are (i) the concession and reallowance figures appearing in the Prospectus in the section entitled “Underwriting,” (ii) the first paragraph of the section entitled “Underwriting—Stabilization” relating to stabilization transactions, over-allotment transactions, syndicate covering transactions and penalty bids in which the Underwriters may engage and (iii) the first sentence of the last paragraph relating to the effecting of stabilization transactions, syndicate covering transactions and penalty bids (collectively, the “Underwriters’ Information”).
(b) Each Underwriter severally will shall indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base ProspectusGeneral Disclosure Package, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any individual Issuer-Represented Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use thereinUnderwriters’ Information; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission an indemnified party’s failure to so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the indemnified party shall have the right to retain separate counsel, but the fees and expenses of such counsel shall be at the expense of the indemnified party, unless (i) the employment of such counsel has been specifically authorized in writing by the indemnifying party, (ii) the indemnifying party has failed to assume the defense, or (iii) the indemnified party shall have reasonably determined (based on the advice of counsel) that the defenses available to it are different from those available to the indemnifying party (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of the indemnified party); it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate, substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate counsel and one separate local counsel for the indemnified party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. The indemnifying party under subsection (a) or (b) above shall only not be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is proceeding effected without its written consent (not to be made against unreasonably withheld or delayed), but if settled with such consent or if there be a final judgment for the indemnified party, the indemnifying party under such subsection unless agrees to indemnify and hold harmless the indemnified party from and against any loss or liability by reason of such settlement is effected with the consent of the indemnifying partyor judgment.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters 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 Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total aggregate price at which of the applicable Designated Securities Shares underwritten by it and distributed to the public were offered to by the public Underwriter exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) In connection with the offer and sale of Directed Shares, the Company agrees promptly upon written notice, to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, liabilities, claims, damages and expenses incurred by them as a result of (i) the violation of any applicable laws or regulations of any foreign jurisdictions where Directed Shares have been offered or (ii) the failure of any Directed Share Purchaser, who has agreed to purchase Directed Shares, to pay for and accept delivery of the Directed Shares. Under no circumstances will the Representatives or any Underwriter be liable to the Company or to any Directed Share Purchaser for any action taken or omitted to be taken in connection with the Directed Shares or any transaction effected with any Directed Share Purchaser, except to the extent found in a final judgment by a court of competent jurisdiction (not subject to further appeal) to have resulted primarily and directly from the gross negligence or willful misconduct of the Representatives or such Underwriter, as the case may be.
(f) The obligations of the Company and its subsidiaries under this Section 9 8 shall be in addition to any liability which the Company and its subsidiaries may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter (within the meaning of the Act) any Underwriter, or any of the respective partners, directors, officers and employees of any Underwriter or any such controlling person; and the obligations of the Underwriters under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), each officer of the Company who signs the Registration Statement and to each person, if any, who controls the Company or its subsidiaries, as the case may be, within the meaning of the Act.
Appears in 3 contracts
Sources: Underwriting Agreement (Silvercrest Asset Management Group Inc.), Underwriting Agreement (Silvercrest Asset Management Group Inc.), Underwriting Agreement (Silvercrest Asset Management Group Inc.)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages damages, liabilities or liabilitiesexpenses, joint or severalas and when incurred, to which such Underwriter may become subject, joint or several, under the 1933 Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) ), arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the 1933 Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will promptly reimburse each such Underwriter for any legal or other reasonable expenses reasonably (including reasonable fees and expenses for no more than one law firm for the Underwriters) when and as incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurredclaim; provided, however, that the Company shall not be liable in any such case to an Underwriter to the extent that any such loss, claim, damage damage, liability or liability expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereoftherein.
(b) Each Underwriter Underwriter, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages damages, liabilities or liabilities expenses to which the Company may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such any Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other reasonable expenses reasonably (including reasonable fees and expenses for no more than one law firm for the Company) when and as incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredclaim.
(c) Promptly after receipt by an indemnified party under subsection (aSection 9(a) or (bSection 9(b) above hereof of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionSection 9(a) or Section 9(b) hereof, notify the such indemnifying party in writing of the commencement thereof; , but the omission so to notify the such indemnifying party shall not relieve the such indemnifying party from any liability which except to the extent that it has been prejudiced in any material respect by such failure or from any liability that it may have to any such indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifySection 9(a) or Section 9(b) hereof. In case any such action shall be brought against any such indemnified party and it shall notify the such indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party under Section 9(a) or Section 9(b) hereof similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the such indemnified party, be counsel to the such indemnifying party), and, after notice from the such indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under such subsection Section 9(a) or Section 9(b) hereof for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in any such action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party under subsection shall bear the reasonable fees, costs and expenses of such separate counsel if (ai) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of any such action; or (biv) above the indemnifying party shall only be liable for authorize the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or (b) above shall not enter into a settlement compromise of, or consent to the entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 9(a) or (bSection 9(b) above hereof in respect of any losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) referred to therein, then each indemnifying party under Section 9(a) or Section 9(b) hereof shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under Section 9(c) hereof, then each such loss, claim, damage indemnifying party shall contribute to such amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other hand 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 omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (dSection 9(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (dSection 9(d). The amount paid or payable by such an indemnified party as a result of the losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) referred to above in this subsection (dSection 9(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 subsection (dSection 9(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it such Underwriter and distributed to the public were offered to the public exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations of the Underwriters of Designated Securities in this subsection (dSection 9(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which that the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter officer, director, employee, agent or other representative and to each person, if any, who controls any each Underwriter within the meaning of the Act, 1933 Act or the 1934 Act and each broker-dealer affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which that the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company officer, director, employee, agent or other representative and to each person, if any, who controls the Company within the meaning of the 1933 Act or the 1934 Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Ameren Corp), Underwriting Agreement (Ameren Corp)
Indemnification and Contribution. (a) The Company and the Guarantor jointly and severally will indemnify and hold harmless each Underwriter from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the ActRules and Regulations, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, or the Registration Statement or Prospectus as amended or supplemented or any Issuer Free Writing Prospectus, any such issuer information, a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company shall and the Guarantor will not be liable under this Section 7(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company and the Guarantor by any Underwriter the Representatives, on behalf of Designated Securities through the Representatives Underwriters, expressly for use therein (which information is specified in any thereofSection 12 hereof).
(b) Each Underwriter severally severally, but not jointly, will indemnify and hold harmless the Company and the Guarantor against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company and the Guarantor may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and the Guarantor promptly after receipt of invoices from the Company and the Guarantor for any legal or other expenses reasonably incurred by the Company and the Guarantor in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Representatives, on behalf of such Underwriter through the Representatives Underwriter, expressly for use therein; and, subject to subsection therein (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company which information is specified in connection with investigating or defending any such action or claim as such expenses are incurredSection 12 hereof).
(c) Promptly after receipt by an any indemnified party under subsection (aSection 7(a) or (b7(b) above of notice of any claim or the commencement of any action, such the indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the indemnifying party shall will not relieve it from any liability which it may have under this Section 7 except to the indemnifying party extent it has been prejudiced in any material respect by such failure or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case If any such claim or action shall will be brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the indemnifying party shall will not be liable to such the indemnified party under such subsection Section 7(a) or 7(b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only , except that the Underwriters will have the right to employ counsel to represent the Underwriters who may be liable for the legal expenses subject to liability arising out of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the Company and the Guarantor under Section 7(a) if (i) the employment thereof has been specifically authorized by the Company and the Guarantor in writing, (ii) the Underwriters will have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company and in the judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company and the Guarantor have failed to assume the defense of such action and employ counsel satisfactory to the Underwriters, in which event the reasonable fees and expenses of such separate counsel will be paid by the Company and the Guarantor. No indemnifying party under will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such subsection claim or action) unless such settlement, compromise or consent (A) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, and (B) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent will not be unreasonably withheld), but if settled with the consent of the indemnifying partyparty or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 7(a) or (b7(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in Section 7(a) or 7(b) above (or actions in respect thereofi) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall hand will be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative Relative fault shall will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (dSection 7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (dSection 7(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 the first sentence of this subsection (dSection 7(d) shall will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this Section 7(d). Notwithstanding the provisions of this subsection (dSection 7(d), no Underwriter shall will be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public investors were offered to the public investors exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 7(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 7(c) above).
(e) The obligations of the Company and the Guarantor under this Section 9 shall 7 will be in addition to any liability which that the Company and the Guarantor may otherwise have have, and shall will extend, upon the same terms and conditionsconditions set forth in this Section 7, to each officer the respective officers and director directors of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 shall 7 will be in addition to any liability which that the respective Underwriters may otherwise have have, and shall will extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Lorillard, Inc.), Underwriting Agreement (Lorillard, Inc.)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a any material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus ADS Registration Statement, or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim claim, as such expenses are incurred; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission made in the Registration Statement, the Base Prospectus, from any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use therein; and provided, further, that the Company shall not be liable to any Underwriter under the indemnity agreement in this subsection (a) with respect to any Preliminary Prospectus to the extent that any such loss, claim, damage or liability of such Underwriter results from the fact that such Underwriter sold Shares or ADSs to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus or the Prospectus as then amended or supplemented in any thereofcase where such delivery is required by the Act if the Company has previously furnished copies thereof in sufficient quantity to such Underwriter as required by Section 4(f) and the loss, claim, damage or liability of such Underwriter results from an untrue statement or omission of a material fact contained in a Preliminary Prospectus which was corrected in the Prospectus or the Prospectus as then amended, modified or supplemented.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a any material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus ADS Registration Statement or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, of such documents in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section. In case any such action shall be is brought against any indemnified party and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein andtherein, and to the extent that it shall may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation proceeding effected without its written consent, but if settled with such consent, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable (other than as a result of (i) the provisos contained in subsection (a) or (ii) the failure of the indemnified party to give notice to the indemnifying party as required under subsection (c) hereof) or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and by the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Offered Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to which such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering of the Offered Shares purchased under the Terms Agreement (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwritersthe Underwriters with respect to the Offered Shares purchased under the Terms Agreement, in each case as set forth in the table on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimclaim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Offered Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities Underwriters'obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company, to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Ahold Finance Usa Inc), Underwriting Agreement (Royal Ahold)
Indemnification and Contribution. (a) A. The Company will Depositor agrees to indemnify and hold harmless each Underwriter, each Underwriter's respective officers and directors and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act from and against any and all loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Offered Certificates), to which such Underwriter or any such controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereof or supplement thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and shall reimburse such Underwriter and each such controlling person promptly upon demand for any legal or other expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Depositor shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus, or any amendment thereof or supplement thereto, or the Registration Statement, or any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter through the Representative, specifically for inclusion therein, and shall reimburse such Underwriter and any such director, officer or controlling person for any legal or other expenses reasonably incurred by such Underwriter or any director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which the Depositor may otherwise have to any Underwriter or any such officer or director or any controlling person of any such Underwriter.
B. Each Underwriter severally agrees to indemnify and hold harmless the Depositor, each of its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the Securities Act against any and all loss, claim, damage or liability, or any action in respect thereof, to which the Depositor or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereof or supplement thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus, or any amendment thereof or supplement thereto, or (iv) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of such Underwriter specifically for inclusion therein, and shall reimburse the Depositor and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Depositor or any director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Depositor or any such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section VIII of notice of any claim or the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against any indemnifying party under this Section VIII, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify an indemnifying party shall not relieve it from any liability which it may have under this Section VIII except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify any indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under this Section VIII. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, except to the extent provided in the next following paragraph, the indemnifying party shall not be liable to the indemnified party under this Section VIII for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless: (i) the employment thereof has been specifically authorized by the indemnifying party in writing; (ii) such indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party and in the reasonable judgment of such counsel it is advisable for such indemnified party to employ separate counsel; or (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to one local counsel per jurisdiction) at any time for all such indemnified parties, which firm shall be designated in writing by the related Underwriter, if the indemnified parties under this Section VIII consist of one or more Underwriters or any of its or their controlling persons, or the Depositor, if the indemnified parties under this Section VIII consist of the Depositor or any of the Depositor's directors, officers or controlling persons. Each indemnified party, as a condition of the indemnity agreements contained in Section VIII (A) and (B), shall use its reasonable best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes an unconditional release of such indemnified party from all liability on any claims that are the subject of such action. Notwithstanding the foregoing paragraph, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.
D. Each Underwriter agrees to provide the Depositor no later than two Business Days prior to the day on which the Prospectus Supplement is required to be filed pursuant to Section I (A) hereof with a copy of any Computational Materials (defined below) produced by such Underwriter for filing with the Commission on Form 8-K.
E. Each Underwriter severally agrees, to indemnify and hold harmless the Depositor, each of the Depositor's officers and directors and each person who controls the Depositor within the meaning of Section 15 of the Securities Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they may become subject, subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged any untrue statement of a material fact contained in the Registration StatementComputational Materials provided by such Underwriter, or arise out of or are based upon the Base Prospectusomission or alleged omission to state therein a material fact necessary to make the statements therein, any Preliminary Prospectusin the light of the circumstances under which they were made, the Pricing Prospectus or not misleading when read in conjunction with the Prospectus, and agrees to reimburse each such indemnified party for any amendment legal or supplement other expenses reasonably incurred by him, her or it in connection with investigating or defending or preparing to defend any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that in no event shall an Underwriter be liable to the Depositor under this paragraph E in an amount in excess of the fees received by such Underwriter in connection with the offering of the Offered Certificates. The obligations of an Underwriter under this Section VIII (E) shall be in addition to any thereofliability which such Underwriter may otherwise have. The procedures set forth in Section VIII (C) shall be equally applicable to this Section VIII (E).
F. The Depositor agrees to indemnify and hold harmless each Underwriter, each Underwriter's respective officers and directors and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act from and against any and all losses, claims, damages or liabilities, joint or several, or any Issuer Free Writing Prospectus action in respect thereof (including, but not limited to, any loss, claim, damage, liability or any “issuer information” filed or required action relating to be filed pursuant purchases and sales of the Offered Certificates), to Rule 433(d) which they may become subject, under the ActSecurities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement of a material fact contained in the Seller Provided Information (as defined below) provided by the Company, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party for any legal or other expenses reasonably incurred by such Underwriter him, her or it in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case preparing to the extent that defend any such loss, claim, damage damage, liability or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim . The foregoing indemnity agreement is in respect thereof is addition to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it the Depositor may otherwise have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case Underwriter or any such action officer or director or any controlling person of any such Underwriter. The procedures set forth in Section VIII (C) shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled equally applicable to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party this Section VIII (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying partyF), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) G. If the indemnification provided for in this Section 9 is VIII shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under subsection Section VIII (aA), (B), (E) or (bF) above in respect of any lossesloss, claimsclaim, damages damage or liabilities (liability, or actions any action in respect thereof) , referred to therein, then each indemnifying party shall shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damages damage or liabilities (liability, or actions action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Depositor on the one hand and the Underwriters on the other from the offering of the relevant Class of Offered Certificates or (ii) if the allocation provided by clause (i) above is not permitted by applicable law or if the indemnified party failed to give the notice required under Section VIII (C), in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative fault of the Company Depositor on the one hand and the Underwriters of the Designated Securities related Underwriter on the other in connection with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage or liabilities (liability, or actions action in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by of an Underwriter and the Company on the one hand and such Underwriters on the other Depositor shall be deemed to be in the same such proportion as the sum of the original principal amount of the offering, plus the total net proceeds to the Depositor from such offering the sale of the Class A-9 IO Certificates (before deducting expenses) received by the Company bear bears to the total underwriting discounts and commissions received by such Underwritersthe related Underwriter from time to time in negotiated sales of the related Offered Certificates. The relative fault of an Underwriter and the Depositor shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on Depositor or by such Underwriter, the one hand or such Underwriters on intent of the other parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionomission and other equitable considerations. The Company Depositor and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection Section VIII (dG) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purposepurposes) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.con
Appears in 2 contracts
Sources: Underwriting Agreement (Contisecurities Asset Funding Corp), Underwriting Agreement (Contisecurities Asset Funding Corp)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a any material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus ADN Registration Statement (if applicable) or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim claim, as such expenses are incurred; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission made in the Registration Statement, the Base Prospectus, from any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use therein; and provided, further, that the Company shall not be liable to any Underwriter under the indemnity agreement in this subsection (a) with respect to any Preliminary Prospectus to the extent that any such loss, claim, damage or liability of such Underwriter results from the fact that such Underwriter sold Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus or the Prospectus as then amended or supplemented in any thereofcase where such delivery is required by the Act if the Company has previously furnished copies thereof in sufficient quantity to such Underwriter as required by Section 4(f) and the loss, claim, damage or liability of such Underwriter results from an untrue statement or omission of a material fact contained in a Preliminary Prospectus which was corrected in the Prospectus or the Prospectus as then amended, modified or supplemented.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a any material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus ADN Registration Statement (if applicable) or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, of such documents in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section. In case any such action shall be is brought against any indemnified party and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein andtherein, and to the extent that it shall may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation proceeding effected without its written consent, but if settled with such consent, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable (other than as a result of (i) the provisos contained in subsection (a) or (ii) the failure of the indemnified party to give notice to the indemnifying party as required under subsection (c) hereof) or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and by the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to which such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering of the Securities purchased under the Terms Agreement (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwritersthe Underwriters with respect to the Securities purchased under the Terms Agreement, in each case as set forth in the table on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimclaim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company, to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Royal Ahold), Underwriting Agreement (Ahold Finance Usa Inc)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereoftherein.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any such amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company Company, as appropriate, in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Notes. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company on the one hand and the Underwriters on the other agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 7 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 7 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Suntrust Banks Inc), Underwriting Agreement (Suntrust Banks Inc)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter, the directors and officers of each Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement for the registration of the Securities as originally filed or in any amendment thereof, the Base Prospectus, or in any Preliminary Prospectus, the Pricing Prospectus or the Final Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or the information contained in the final term sheet required to be prepared and filed pursuant to Rule 433(dSection 4(b) under the Acthereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly specifically for use in connection with the preparation thereof. This indemnity agreement will be in addition to any thereofliability which the Company may otherwise have.
(b) Each Underwriter severally will and not jointly agrees to indemnify and hold harmless the Company against any lossesCompany, claimseach of its directors and officers, damages or liabilities to which and each person who controls the Company may become subject, under within the meaning of either the Act or otherwisethe Exchange Act, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentsame extent as the foregoing indemnity from the Company in Section 7(a) hereto, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives expressly specifically for use therein; andin the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (A) in the last paragraph of the cover page regarding delivery of the Securities and (B) under the heading “Underwriting (Conflicts of Interest)”: (i) the list of Underwriters and their respective participation in the sale of the Securities, subject (ii) the sentences related to subsection concessions and reallowances and (ciii) belowthe five paragraphs related to over-allotments, will reimburse syndicate covering transactions, stabilization transactions and penalty bids constitute the Company only information furnished in writing by or on behalf of the several Underwriters for any legal or other expenses reasonably incurred by inclusion in the Company documents referred to in connection with investigating or defending any such action or claim as such expenses are incurredthe foregoing indemnity.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 7 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any liability obligations to any indemnified party which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel satisfactory to such indemnified party (who shall not, except with the consent of to represent the indemnified partyparty in such action; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume appoint counsel to defend such action and approval by the defense thereofindemnified party of such counsel, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 7 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs unless (i) the use of investigation. The counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel), approved by the Representatives in the case of paragraph (a) of this Section 7, representing the indemnified parties under subsection such paragraph (a) who are parties to such action), (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iv) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. An indemnifying party shall not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) or (b) above shall only be liable of this Section 7 is due in accordance with its terms but is for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into reason held by a settlement of any litigation in respect of which a claim is court to be made against unavailable from the indemnifying party under such subsection unless such settlement is effected with Company on grounds of policy or otherwise, the consent of Company and the indemnifying party.
(d) If Underwriters shall contribute to the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any aggregate losses, claims, damages or and liabilities (including legal or actions other expenses reasonably incurred in respect thereofconnection with investigation or defending same) referred (collectively “Losses”) to therein, then each indemnifying party shall contribute to which the amount paid Company and one or payable by such indemnified party as a result more of such losses, claims, damages or liabilities (or actions in respect thereof) the Underwriters may be subject in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and by the Underwriters of the Designated Securities on the other from the offering of the Designated Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to which reflect not only such loss, claim, damage or liability (or action in respect thereof) relates relative benefits but also the relative fault of the Company on the one hand and of the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as equal to the total net proceeds from such the offering (before deducting expenses) received by it, and benefits received by the Company bear Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by such Underwriterscommissions, in each case as set forth on the cover page of the Final Prospectus. The relative Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied provided by the Company on the one hand or such the Underwriters on the other other, the intent of the parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimabove. Notwithstanding the provisions of this subsection paragraph (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend7, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any an Underwriter within the meaning of the ActAct shall have the same rights to contribution as such Underwriter, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the preceding sentence of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d).
Appears in 2 contracts
Sources: Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Indemnification and Contribution. (a) The Company will shall indemnify and hold harmless each Underwriter Selling Stockholder, such Selling Stockholder's directors, officers, employees, representatives, agents and each person, if any, who controls such Selling Stockholder within the meaning of Section 15 of the Securities Act (each, an "Indemnified Stockholder"), from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to resales of the Shares), to which such Underwriter Indemnified Stockholder may become subject, under the Securities Act or otherwise, insofar as any such lossesloss, claimsclaim, damages damage, liability or liabilities action arises out of, or is based upon:
(or actions in respect thereofi) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Statement or Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d; or
(ii) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a in the Registration Statement any material fact required to be stated therein or necessary to make the statements therein not misleading, andor the omission or alleged omission to state in the Prospectus any material fact required to be stated therein or necessary to make the statements therein, subject to subsection (c) belowin the light of the circumstances under which they were made, will not misleading; and shall reimburse each Underwriter Indemnified Stockholder promptly upon demand for any legal or other expenses expenses, subject to Section 5(c) below, reasonably incurred by such Underwriter Indemnified Stockholder in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage damage, liability or liability action arises out of of, or is based upon an upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Statement or Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with the Selling Stockholder Information or any other written information furnished to the Company by or on behalf of Fairfax or any Underwriter of Designated Securities through the Representatives expressly Selling Stockholder specifically for use therein. The foregoing indemnity agreement is in addition to any thereofliability that the Company may otherwise have to any Indemnified Stockholder.
(b) Each Underwriter severally will Fairfax shall indemnify and hold harmless the Company, its directors, officers, employees, representatives, agents and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any lossesloss, claimsclaim, damages damage or liabilities liability, joint or several, or any action in respect thereof, to which the Company or any such officer, employee, representative, agent or controlling person may become subject, under the Act or otherwise, insofar as any such lossesloss, claimsclaim, damages damage or liabilities liability or action arises out of, or is based upon:
(or actions in respect thereofi) arise out of or are based upon an any untrue statement or alleged untrue statement of a any material fact contained in the Registration Statement, the Base Statement or Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon ; or
(ii) the omission or the alleged omission to state therein a in the Registration Statement any material fact required to be stated therein or necessary to make the statements therein not misleading, or the omission or alleged omission to state in the Prospectus any 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, but in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with the Selling Stockholder Information or any other written information furnished to the Company by Fairfax or such Underwriter through the Representatives expressly Selling Stockholder specifically for use therein; and, subject to subsection (c) below, will and shall reimburse the Company and any such director, officer, employee, representative, agent or controlling person promptly upon demand for any legal or other expenses expenses, subject to Section 5(c) below, reasonably incurred by the Company and any such director, officer, employee, representative, agent or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action or claim as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability that Fairfax or any Selling Stockholder may otherwise have to the Company and any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 5 of notice of any claim or the commencement of any action, such the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 5, notify the indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission so failure to notify the indemnifying party shall not relieve it from any liability that it may have under this Section 5 except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability which that it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 5. In case If any such claim or action shall be brought against any an indemnified party party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the indemnifying party shall not be liable to such the indemnified party under such subsection this Section 5 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The ; provided, however, that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and its respective directors, employees, officers and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the indemnified party against the indemnifying party under subsection (a) this Section 5 if such indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or (b) above that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, and in that event the fees and expenses of such separate counsel shall only be paid by the indemnifying party. It is understood that the indemnifying party shall not be liable for the legal fees and expenses of more than one separate firm (in addition to local counsel in each jurisdiction) for all indemnified parties in each jurisdiction connection with any proceeding or related proceedings. Each indemnified party, as a condition of the indemnity agreements contained in Sections 5(a) and 5(b), shall use its reasonable efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall:
(i) without the prior written consent of the indemnified parties (which any claim or action is brought. An indemnified party under subsection (a) or (b) above consent shall not enter into a be unreasonably withheld) effect any settlement of any litigation pending or threatened action in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of such indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a claim is statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party, or
(ii) be made against liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such action, the indemnifying party under such subsection unless agrees to indemnify and hold harmless any indemnified party from and against any loss of liability by reason of such settlement is effected or judgment in accordance with the consent of the indemnifying partythis Section 5.
(d) If the indemnification provided for in this Section 9 5 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the registration of the Shares pursuant to the Registration Statement, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative fault of the Company indemnifying party or parties on the one hand and the Underwriters of the Designated Securities indemnified party on the other in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), ) as well as any other relevant equitable considerations. The relative benefits received by fault of the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault parties 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters Selling Stockholder or such other indemnified party, as the case may be, on the other other, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 the first sentence of this subsection (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 claim which is the provisions subject of this subsection (d). Notwithstanding any other provision of this Section 5(d), no Underwriter the Selling Stockholders shall not be required to contribute any amount in excess of the amount by which the total price at which gross proceeds received by such Selling Stockholders from the applicable Designated Securities underwritten by it and distributed sale of the Shares pursuant to the public were offered to the public Registration Statement exceeds the amount of any damages which such Underwriter has Selling Stockholders have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 obligations For purposes of the Underwriters of Designated Securities in this subsection paragraph (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend), upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter such indemnified party within the meaning of the Act, and Securities Act or the obligations of the Underwriters under this Section 9 Exchange Act shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms rights to contribution as such indemnified party and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the ActSecurities Act or the Exchange Act shall have the same rights to contribution as the Company.
(e) The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Selling Stockholder or any person controlling any Selling Stockholder, or by or on behalf of the Company, its officers or directors or any person controlling the Company, and (iii) any sale of the Shares pursuant to the Registration Statement.
Appears in 2 contracts
Sources: Registration and Indemnification Agreement (Zenith National Insurance Corp), Registration and Indemnification Agreement (Fairfax Financial Holdings LTD/ Can)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter, the directors and officers of each Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement for the registration of the Securities as originally filed or in any amendment thereof, the Base Prospectus, or in any Preliminary Prospectus, the Pricing Prospectus or the Final Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or the information contained in the final term sheet required to be prepared and filed pursuant to Rule 433(dSection 4(b) under the Acthereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly specifically for use in connection with the preparation thereof. This indemnity agreement will be in addition to any thereofliability which the Company may otherwise have.
(b) Each Underwriter severally will and not jointly agrees to indemnify and hold harmless the Company against any lossesCompany, claimseach of its directors and officers, damages or liabilities to which and each person who controls the Company may become subject, under within the meaning of either the Act or otherwisethe Exchange Act, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentsame extent as the foregoing indemnity from the Company in Section 7(a) hereto, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives expressly specifically for use therein; andin the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (A) in the last paragraph of the cover page regarding delivery of the Securities and (B) under the heading “Underwriting”: (i) the list of Underwriters and their respective participation in the sale of the Securities, subject (ii) the sentences related to subsection concessions and reallowances and (ciii) belowthe five paragraphs related to over-allotments, will reimburse syndicate covering transactions, stabilization transactions and penalty bids constitute the Company only information furnished in writing by or on behalf of the several Underwriters for any legal or other expenses reasonably incurred by inclusion in the Company documents referred to in connection with investigating or defending any such action or claim as such expenses are incurredthe foregoing indemnity.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 7 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any liability obligations to any indemnified party which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel satisfactory to such indemnified party (who shall not, except with the consent of to represent the indemnified partyparty in such action; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume appoint counsel to defend such action and approval by the defense thereofindemnified party of such counsel, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 7 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs unless (i) the use of investigation. The counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel), approved by the Representatives in the case of paragraph (a) of this Section 7, representing the indemnified parties under subsection such paragraph (a) who are parties to such action), (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iv) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. An indemnifying party shall not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) or (b) above shall only be liable of this Section 7 is due in accordance with its terms but is for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into reason held by a settlement of any litigation in respect of which a claim is court to be made against unavailable from the indemnifying party under such subsection unless such settlement is effected with Company on grounds of policy or otherwise, the consent of Company and the indemnifying party.
(d) If Underwriters shall contribute to the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any aggregate losses, claims, damages or and liabilities (including legal or actions other expenses reasonably incurred in respect thereofconnection with investigation or defending same) referred (collectively “Losses”) to therein, then each indemnifying party shall contribute to which the amount paid Company and one or payable by such indemnified party as a result more of such losses, claims, damages or liabilities (or actions in respect thereof) the Underwriters may be subject in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and by the Underwriters of the Designated Securities on the other from the offering of the Designated Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to which reflect not only such loss, claim, damage or liability (or action in respect thereof) relates relative benefits but also the relative fault of the Company on the one hand and of the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as equal to the total net proceeds from such the offering (before deducting expenses) received by it, and benefits received by the Company bear Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by such Underwriterscommissions, in each case as set forth on the cover page of the Final Prospectus. The relative Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied provided by the Company on the one hand or such the Underwriters on the other other, the intent of the parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimabove. Notwithstanding the provisions of this subsection paragraph (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend7, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any an Underwriter within the meaning of the ActAct shall have the same rights to contribution as such Underwriter, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the preceding sentence of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d).
Appears in 2 contracts
Sources: Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, andor (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), subject any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Information, or any “issuer information” filed or required to subsection (cbe filed under Rule 433(d) belowof the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base ProspectusProspectus as amended or supplemented, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing ProspectusProspectus or the Time of Sale Information, or any such amendment or supplement of or to the foregoing, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities the First Mortgage Bonds through the Representatives expressly for use in the Registration Statement, the Prospectus as amended or supplemented, any thereofPreliminary Prospectus, any Issuer Free Writing Prospectus or the Time of Sale Information, or any such amendment or supplement of or to the foregoing, which information is specified in Section 9(b) hereof.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Time of Sale Information, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Issuer Free Writing Prospectus, the Time of Sale Information, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus as amended or supplemented and any other prospectus relating to the ProspectusFirst Mortgage Bonds, or any such amendment or supplement of or to any thereof, or any Issuer Free Writing Prospectusthe foregoing, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use thereinin any Issuer Free Writing Prospectus, the Time of Sale Information, the Registration Statement, any Preliminary Prospectus, the Prospectus as amended or supplemented and any other prospectus relating to the First Mortgage Bonds, or any such amendment or supplement of or to the foregoing, it being understood and agreed that the only such information consists of the following: (i) the third paragraph of text under the caption “Underwriting” in the Specified Preliminary Prospectus and the Prospectus, concerning the terms of the offering by the Underwriters, (ii) the third and fourth sentences of the fourth paragraph of text under the caption “Underwriting” in the Specified Preliminary Prospectus and the Prospectus, concerning market-making by the Underwriters, and (iii) the fifth and sixth paragraphs of text under the caption “Underwriting” in the Specified Preliminary Prospectus and the Prospectus, concerning overallotment, stabilization, short-positions and penalty bids; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability except to the indemnifying party extent that it has been materially prejudiced by such failure or from any liability which it may have to any indemnified party otherwise other than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in any such action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party under subsection shall bear the reasonable fees, costs and expenses of such separate counsel if (ai) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of any such action; or (biv) above the indemnifying party shall only be liable for authorize the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or (b) above shall not enter into a settlement compromise of, or consent to the entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities First Mortgage Bonds on the other hand from the offering of the Designated Securities First Mortgage Bonds to which such loss, claim, damage or liability (or action in respect thereof) relates relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities First Mortgage Bonds on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault of the Company on the one hand and such Underwriters on the other hand 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other hand and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities First Mortgage Bonds underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities the First Mortgage Bonds in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities First Mortgage Bonds and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Ameren Illinois Co), Underwriting Agreement (Union Electric Co)
Indemnification and Contribution. (a) The Company and the Guarantor jointly and severally will indemnify and hold harmless each Underwriter from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the ActRules and Regulations, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, or the Registration Statement or Prospectus as amended or supplemented or any Issuer Free Writing Prospectus, any such issuer information, a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company shall and the Guarantor will not be liable under this Section 7(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company and the Guarantor by any Underwriter the Representative, on behalf of Designated Securities through the Representatives Underwriters, expressly for use therein (which information is specified in any thereofSection 12 hereof).
(b) Each Underwriter severally severally, but not jointly, will indemnify and hold harmless the Company and the Guarantor against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company and the Guarantor may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and the Guarantor promptly after receipt of invoices from the Company and the Guarantor for any legal or other expenses reasonably incurred by the Company and the Guarantor in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Representative, on behalf of such Underwriter through the Representatives Underwriter, expressly for use therein; and, subject to subsection therein (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company which information is specified in connection with investigating or defending any such action or claim as such expenses are incurredSection 12 hereof).
(c) Promptly after receipt by an any indemnified party under subsection (aSection 7(a) or (b7(b) above of notice of any claim or the commencement of any action, such the indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the indemnifying party shall will not relieve it from any liability which it may have under this Section 7 except to the indemnifying party extent it has been prejudiced in any material respect by such failure or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case If any such claim or action shall will be brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the indemnifying party shall will not be liable to such the indemnified party under such subsection Section 7(a) or 7(b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only , except that the Underwriters will have the right to employ counsel to represent the Underwriters who may be liable for the legal expenses subject to liability arising out of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the Company and the Guarantor under Section 7(a) if (i) the employment thereof has been specifically authorized by the Company and the Guarantor in writing, (ii) the Underwriters will have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company and in the judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company and the Guarantor have failed to assume the defense of such action and employ counsel satisfactory to the Underwriters, in which event the reasonable fees and expenses of such separate counsel will be paid by the Company and the Guarantor. No indemnifying party under will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such subsection claim or action) unless such settlement, compromise or consent (A) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, and (B) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent will not be unreasonably withheld), but if settled with the consent of the indemnifying partyparty or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 7(a) or (b7(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in Section 7(a) or 7(b) above (or actions in respect thereofi) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall hand will be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative Relative fault shall will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (dSection 7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (dSection 7(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 the first sentence of this subsection (dSection 7(d) shall will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this Section 7(d). Notwithstanding the provisions of this subsection (dSection 7(d), no Underwriter shall will be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public investors were offered to the public investors exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 7(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 7(c) above).
(e) The obligations of the Company and the Guarantor under this Section 9 shall 7 will be in addition to any liability which that the Company and the Guarantor may otherwise have have, and shall will extend, upon the same terms and conditionsconditions set forth in this Section 7, to each officer the respective officers and director directors of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 shall 7 will be in addition to any liability which that the respective Underwriters may otherwise have have, and shall will extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Lorillard, Inc.), Underwriting Agreement (Lorillard, Inc.)
Indemnification and Contribution. (a) The Company In the event of --------------------------------- any registration under the Securities Act pursuant to this Article VII of any Registrable Securities, Seller will indemnify and hold harmless each Underwriter the Holder thereof against any losses, claims, damages damages, liabilities or liabilitiesexpenses, joint or several, to which such Underwriter Holder may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a any material fact contained contained, on the effective date thereof, in any registration statement under which such securities were registered under the Registration Statement, the Base ProspectusSecurities Act, any Preliminary Prospectuspreliminary prospectus or final prospectus contained therein, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter such Holder for any legal or any other expenses reasonably incurred by such Underwriter Holder in connection with investigating or defending any such action or claim as such expenses are incurred; provided, -------- however, that the Company Seller shall not be liable in any such case to the extent that any ------- such loss, claim, damage damage, liability or liability expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statementsuch registration statement, the Base Prospectuspreliminary prospectus, any Preliminary Prospectus, the Pricing Prospectus prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company Seller by any Underwriter such Holder or an underwriter on behalf of Designated Securities through the Representatives such Holder expressly for use in therein; and provided further that the foregoing -------- ------- indemnity agreement with respect to any thereof.prospectus shall not inure to the benefit of the Holder if it is conclusively determined by a court of competent jurisdiction not subject to appeal that a copy of a prospectus was not sent or given by or on behalf of the Holder to the purchaser of the Common Stock who has asserted a claim, if required by law to have been so delivered, at or prior to the written confirmation of the sale of Common Stock to such person, and if a prospectus would have cured the defect giving rise to such loss, claim, damage or liability;
(b) Each Underwriter severally will Holder of Registrable Securities, by acceptance of the registration provisions provided herein, agrees to indemnify and hold harmless the Company Seller against any losses, claims, damages damages, liabilities or liabilities expenses, joint or several, to which the Company Seller may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement under which securities were registered under the Registration Statement, Securities Act at the Base Prospectusrequest of such Holder, any Preliminary Prospectuspreliminary prospectus or final prospectus contained therein, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statementany such registration statement, the Base Prospectuspreliminary prospectus, any Preliminary Prospectus, the Pricing Prospectus prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company Seller by such Underwriter through the Representatives Holder expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company Seller for any legal or other expenses reasonably incurred by the Company Seller in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the an indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only except to the extent such indemnifying party it has been materially prejudiced by such omission so to notifyfailure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who which shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 7.05 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (bc) above in respect of any losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) referred to thereintherein or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by the Company fault of Seller on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities relevant Holder on the other in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company Seller on the one hand or such Underwriters the relevant 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 Seller and the Underwriters each Holder registering securities under this Article VII agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter Holder registering securities under this Article VII shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten securities registered and sold by it and distributed to the public were offered to the public such Holder exceeds the amount of any damages which such Underwriter Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company Seller under this Section 9 7.05 shall be in addition to any liability which Seller may otherwise have and shall extend, upon the Company same terms and conditions, to each person (including each underwriter) who participated in the offering of the registered securities and to each person, if any, who controls any Holder registering securities under this Article VII or any such person (including each such underwriter) within the meaning of Section 15 of the Securities Act; and the obligations under this Section 7.05 of any Holder registering securities under this Article VII shall be in addition to any liability which such Holder may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter Seller and to each person, if any, who controls any Underwriter Seller within the meaning of the Act, and the obligations Section 15 of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (International Computex Inc), Common Stock Purchase Agreement (International Computex Inc)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, affiliates and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Securities Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Securities Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statementregistration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus Prospectus, or in any “issuer information” filed amendment thereof or required to be filed pursuant to Rule 433(d) under the Actsupplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any reasonable and documented legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly specifically for use inclusion therein. This indemnity agreement will be in addition to any thereofliability which the Company may otherwise have.
(b) Each Underwriter The Selling Stockholder severally will agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, affiliates and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Securities Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentUnderwriter, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Selling Stockholder specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which the Selling Stockholder may otherwise have.
(c) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company or the Selling Stockholder within the meaning of either the Securities Act or the Exchange Act and the Selling Stockholder, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives expressly specifically for use therein; inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company and the Selling Stockholder acknowledge that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Securities and, subject under the heading “Underwriting” or “Plan of Distribution,” (ii) the list of Underwriters and their respective participation in the sale of the Securities, (iii) the sentences related to subsection concessions and reallowances and (civ) belowthe paragraph related to stabilization, will reimburse syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Company Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any legal Preliminary Prospectus, the Final Prospectus or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredIssuer Free Writing Prospectus.
(cd) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 8 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 8, notify the indemnifying party in writing of the commencement thereof; but the omission failure so to notify the indemnifying party shall (i) will not relieve it from liability under paragraph (a), (b) or (c) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any liability which it may have obligations to any indemnified party otherwise other than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifyindemnification obligation provided in paragraph (a), (b) or (c) above. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from ’s choice at the indemnifying party party’s expense to such represent the indemnified party of its election so to assume the defense thereof, in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be liable to such responsible for the fees and expenses of any separate counsel retained by the indemnified party under or parties except as set forth below); provided, however, that such subsection for any legal counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other counsel indemnified parties which are different from or any other expenses, in each case subsequently incurred by such indemnified additional to those available to the indemnifying party, in connection with (iii) the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (biv) above the indemnifying party shall only be liable for authorize the legal expenses indemnified party to employ separate counsel at the expense of one counsel for all indemnified parties in each jurisdiction in which any claim or action is broughtthe indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified party under subsection (a) parties, settle or (b) above shall not enter into a settlement compromise or consent to the entry of any litigation judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which a indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim is to be made against the indemnifying party under such subsection or action) unless such settlement is effected with the settlement, compromise or consent (i) includes an unconditional release of the indemnifying each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(de) If In the indemnification event that the indemnity provided for in paragraph (a), (b) or (c) of this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of for any reason, the Company, the Selling Stockholder and the Underwriters severally agree to contribute to the aggregate losses, claims, damages or and liabilities (including legal or actions other expenses reasonably incurred in respect thereofconnection with investigating or defending the same) referred (collectively, “Losses”) to thereinwhich the Company, then each indemnifying party the Selling Stockholder and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, by the Selling Stockholder and by the Underwriters from the offering of the Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company, the Selling Stockholder and the Underwriters severally 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) in such proportion as is appropriate to reflect not only the such relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on Company, of the one hand Selling Stockholder and of the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company on and by the one hand and such Underwriters on the other Selling Stockholder shall be deemed to be in the same proportion as equal to the total net proceeds from such the offering (before deducting expenses) received by each of them, and benefits received by the Company bear Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by such Underwriterscommissions, in each case as set forth on the cover page of the Final Prospectus. The relative Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied provided by the Company or the Selling Stockholder on the one hand or such the Underwriters on the other other, the intent of the parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company Company, the Selling Stockholder and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimabove. Notwithstanding the provisions of this subsection paragraph (de), in no event shall any Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten underwriting discounts and commissions received by it and distributed such Underwriter with respect to the public were offered to offering of the public Securities exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Notwithstanding the provisions of this paragraph (e), no person 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 obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend8, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any an Underwriter within the meaning of either the ActSecurities Act or the Exchange Act and each director, officer, employee, affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, person who controls the Company within the meaning of either the Securities Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (e).
(f) The liability of the Selling Stockholder under the Selling Stockholder’s representations and warranties contained in Section 1 hereof and under the indemnity and contribution agreements contained in this Section 8 shall be limited to an amount equal to the aggregate gross proceeds after underwriting commissions and discounts, but before expenses, to such Selling Stockholder from the sale of Securities sold by such Selling Stockholder hereunder. The Company and the Selling Stockholder may agree, as among themselves and without limiting the rights of the Underwriters under this Agreement, as to the respective amounts of such liability for which they each shall be responsible.
Appears in 2 contracts
Sources: Underwriting Agreement (Silverbow Resources, Inc.), Underwriting Agreement (Silverbow Resources, Inc.)
Indemnification and Contribution. (a) The Company and the Subsidiary Guarantors will indemnify and hold harmless each Underwriter from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus Prospectus, or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the ActRules and Regulations, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, or the Registration Statement or Prospectus as amended or supplemented or any Issuer Free Writing Prospectus, any such issuer information, a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company shall and the Subsidiary Guarantors will not be liable under this Section 7(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company and the Subsidiary Guarantors by the Representatives, on behalf of any Underwriter of Designated Securities through the Representatives Underwriter, expressly for use therein (which information is specified in any thereofSection 12 hereof).
(b) Each Underwriter severally severally, but not jointly, will indemnify and hold harmless the Company and the Subsidiary Guarantors against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company or the Subsidiary Guarantors may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company and the Subsidiary Guarantors promptly after receipt of invoices from the Company and the Subsidiary Guarantors for any legal or other expenses reasonably incurred by the Company and the Subsidiary Guarantors in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company and the Subsidiary Guarantors by the Representatives, on behalf of such Underwriter through the Representatives Underwriter, expressly for use therein; and, subject to subsection inclusion therein (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company which information is specified in connection with investigating or defending any such action or claim as such expenses are incurredSection 12 hereof).
(c) Promptly after receipt by an any indemnified party under subsection (aSection 7(a) or (b7(b) above of notice of any claim or the commencement of any action, such the indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the indemnifying party shall will not relieve it from any liability which it may have under this Section 7 except to the indemnifying party extent it has been prejudiced in any material respect by such failure or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case If any such claim or action shall will be brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the indemnifying party shall will not be liable to such the indemnified party under such subsection Section 7(a) or 7(b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only , except that the Underwriters will have the right to employ counsel to represent the Underwriters who may be liable for the legal expenses subject to liability arising out of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the Company and the Subsidiary Guarantors under Section 7(a) if (i) the employment thereof has been specifically authorized by the Company and the Subsidiary Guarantors in writing, (ii) the Underwriters will have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company and the Subsidiary Guarantors and in the judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company and the Subsidiary Guarantors have failed to assume the defense of such action and employ counsel satisfactory to the Underwriters, in which event the reasonable fees and expenses of such separate counsel will be paid by the Company and the Subsidiary Guarantors. No indemnifying party under will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such subsection claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of any indemnified party, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent will not be unreasonably withheld), but if settled with the consent of the indemnifying partyparty or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 7(a) or (b7(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in Section 7(a) or 7(b) above (or actions in respect thereofi) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall hand will be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative Relative fault shall will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (dSection 7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (dSection 7(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 the first sentence of this subsection (dSection 7(d) shall will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this Section 7(d). Notwithstanding the provisions of this subsection (dSection 7(d), no Underwriter shall will be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public investors were offered to the public investors exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 7(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect of which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 7(c) above).
(e) The obligations of the Company and the Subsidiary Guarantors under this Section 9 shall 7 will be in addition to any liability which that the Company and the Subsidiary Guarantors may otherwise have have, and shall will extend, upon the same terms and conditionsconditions set forth in this Section 7, to each officer the respective officers and director directors of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 shall 7 will be in addition to any liability which that the respective Underwriters may otherwise have have, and shall will extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Staples Inc), Underwriting Agreement (Staples Inc)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon the failure to have an effective Registration Statement relating to the Securities or the failure to satisfy the prospectus delivery requirements of the Securities Act because the Company failed to provide the Underwriters with a Prospectus for delivery, or arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Disclosure Package or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the Securities Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, andor arise out of or are based upon the engagement of the Underwriters pursuant to, subject or the performance of the Underwriters of their respective services (including any such services performed on or prior to subsection (cthe date hereof) belowcontemplated by, this Agreement, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Disclosure Package, the Registration Statement or the Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly for use therein. The Underwriters shall incur no liability to and shall be indemnified and held harmless by the Company for, or in respect of, any thereofactions taken, omitted to be taken or suffered to be taken in the absence of bad faith, gross negligence or willful misconduct by the Underwriters in reasonable reliance upon the advice of counsel satisfactory to it or instructions from the Trustee (pursuant to the Indenture) or the Company.
(b) Each Underwriter Underwriter, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Disclosure Package or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, Disclosure Package or the Pricing Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party (or such other release of the indemnified party as shall be satisfactory to the indemnified party) from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other hand in connection with the offering of the Securities shall be deemed to be in the same proportion respective proportions as the total net proceeds from such offering (before deducting expenses) received by the Company bear to from the sale of the Securities and the total underwriting discounts and commissions received by such Underwritersthe Underwriters with respect to the offering of the Securities, bear to the aggregate offering price of the Securities. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters 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 Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten underwriting discounts and commissions received by it and distributed such Underwriter with respect to the public were offered to offering of the public Securities exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each director and officer and director of any each Underwriter and to its affiliates and each person, if any, who controls any an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Underwriters and their affiliates; and the obligations of the Underwriters under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Travelers Companies, Inc.), Underwriting Agreement (Travelers Companies, Inc.)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter Holder of Registrable Securities covered by the Shelf Registration Statement, the Initial Purchaser, the directors, officers, employees, Affiliates and agents of each such Holder or Initial Purchaser and each person who controls any such Holder or Initial Purchaser within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration StatementStatement as originally filed or in any amendment thereof, the Base Prospectus, or in any Preliminary Prospectus, the Pricing preliminary Prospectus or the Prospectus, or in any amendment thereof or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary Prospectus or the Prospectus, in the light of the circumstances under which they were made) not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Underwriter it in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the party claiming indemnification specifically for inclusion therein. This indemnity agreement shall be in addition to any Underwriter liability that the Company may otherwise have to the indemnified party. The Company also agrees to indemnify as provided in this Section 5(a) or contribute as provided in Section 5(d) hereof to Losses of Designated each underwriter, if any, of Registrable Securities through registered under the Representatives expressly for use Shelf Registration Statement, its directors, officers, employees, Affiliates or agents and each person who controls such underwriter on substantially the same basis as that of the indemnification of the Initial Purchaser and the selling Holders provided in this paragraph (a) and shall, if requested by any thereofHolder, enter into an underwriting agreement reflecting such agreement, as provided in Section 3(l) hereof.
(b) Each Underwriter Holder of securities covered by the Shelf Registration Statement (including the Initial Purchaser that is a Holder, in such capacity) severally will and not jointly agrees to indemnify and hold harmless the Company against any losses, claimseach of its directors, damages or liabilities to which each of its officers, employees, Affiliates and agents of the Company may become subject, under and each person who controls the Company within the meaning of either the Act or otherwisethe Exchange Act, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentsame extent as the foregoing indemnity from the Company to each such Holder, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Underwriter through Holder specifically for inclusion in the Representatives expressly for use therein; and, subject documents referred to subsection (c) below, will reimburse in the Company for foregoing indemnity. This indemnity agreement shall be acknowledged by each Notice Holder that is not an Initial Purchaser in such Notice Holder’s Notice and Questionnaire and shall be in addition to any legal or other expenses reasonably incurred by the Company in connection with investigating or defending liability that any such action or claim as such expenses are incurredNotice Holder may otherwise have to the Company.
(c) Promptly after receipt by an indemnified party under subsection (a) this Section 5 or (b) above of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 5, notify the indemnifying party in writing of the commencement thereof; but the omission failure so to notify the indemnifying party shall (i) will not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection paragraph (a) or (b) above shall only be liable for unless and to the legal expenses extent it did not otherwise learn of one counsel for all indemnified parties such action and such failure results in each jurisdiction the forfeiture by the indemnifying party of any substantial rights and defenses; and (ii) will not, in which any claim or action is brought. An event, relieve the indemnifying party from any obligations to any indemnified party under subsection other than the indemnification obligation provided in paragraph (a) or (b) above above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not enter into thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any litigation pending or threatened action in respect of which any indemnified party is or could have been a claim is to be made against the indemnifying party under and indemnity could have been sought hereunder by such subsection indemnified party unless such settlement is effected with (i) includes an unconditional release of such indemnified party from all liability on any claims that are the consent subject matter of such action, (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party, and (iii) does not include any undertaking or obligation to act or to refrain from acting by the indemnifying indemnified party.
(d) If In the indemnification event that the indemnity provided for in paragraph (a) or (b) of this Section 9 5 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of for any reason, then each applicable indemnifying party shall have a joint and several obligation to contribute to the aggregate losses, claims, damages or and liabilities (including legal or actions other expenses reasonably incurred in respect thereofconnection with investigating or defending loss, claim, liability, damage or action) referred (collectively “Losses”) to thereinwhich such indemnified party may be subject in such proportion as is appropriate to reflect the relative benefits received by such indemnifying party, then each on the one hand, and such indemnified party, on the other hand, from the Shelf Registration Statement which resulted in such Losses. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the indemnifying party and the indemnified 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) in such proportion as is appropriate to reflect not only the such relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company such indemnifying party, on the one hand hand, and the Underwriters of the Designated Securities such indemnified party, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. The relative Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied provided by the Company indemnifying party, on the one hand hand, or such Underwriters by the indemnified party, on the other hand, the intent of the parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters parties agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimabove. Notwithstanding the provisions any other provision of this subsection (dSection 5(d), no Underwriter the Holders shall not be required to contribute any amount in excess of the amount by which the total price at which net proceeds received by such Holders from the applicable Designated sale of the Registrable Securities underwritten by it and distributed pursuant to the public were offered to the public Shelf Registration Statement exceeds the amount of any damages which such Underwriter has Holders have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend5, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any Underwriter a Holder within the meaning of either the ActAct or the Exchange Act and each director, officer, employee and agent of such Holder shall have the same rights to contribution as such Holder, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company and each director, employee or agent of the Company shall have the same rights to contribution as the Company , subject in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 5 shall remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or the Company or any of the indemnified persons referred to in this Section 5, and shall survive the sale by a Holder of securities covered by the Shelf Registration Statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Linear Technology Corp /Ca/), Registration Rights Agreement (Linear Technology Corp /Ca/)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the ActRules and Regulations, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, or the Registration Statement or Prospectus as amended or supplemented or any Issuer Free Writing Prospectus, any such issuer information, a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company shall will not be liable under this Section 7(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter the Representatives, on behalf of Designated Securities through the Representatives Underwriters, expressly for use therein (which information is specified in any thereofSection 12 hereof).
(b) Each Underwriter severally severally, but not jointly, will indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company promptly after receipt of invoices from the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Representatives, on behalf of such Underwriter through the Representatives Underwriter, expressly for use therein; and, subject to subsection therein (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company which information is specified in connection with investigating or defending any such action or claim as such expenses are incurredSection 12 hereof).
(c) Promptly after receipt by an any indemnified party under subsection (aSection 7(a) or (b7(b) above of notice of any claim or the commencement of any action, such the indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the indemnifying party shall will not relieve it from any liability which it may have under this Section 7 except to the indemnifying party extent it has been prejudiced in any material respect by such failure or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case If any such claim or action shall will be brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the indemnifying party shall will not be liable to such the indemnified party under such subsection Section 7(a) or 7(b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only , except that the Underwriters will have the right to employ counsel to represent the Underwriters who may be liable for the legal expenses subject to liability arising out of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the Company under Section 7(a) if (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Underwriters will have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company and in the judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company has failed to assume the defense of such action and employ counsel satisfactory to the Underwriters, in which event the fees and expenses of such separate counsel will be paid by the Company. No indemnifying party under will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such subsection claim or action) unless such settlement, compromise or consent (A) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (B) does not include any findings of fact or admissions of fault arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent will not be unreasonably withheld), but if settled with the consent of the indemnifying partyparty or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 7(a) or (b7(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in Section 7(a) or 7(b) above (or actions in respect thereofi) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall hand will be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative Relative fault shall will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (dSection 7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (dSection 7(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 the first sentence of this subsection (dSection 7(d) shall will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this Section 7(d). Notwithstanding the provisions of this subsection (dSection 7(d), no Underwriter shall will be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public investors were offered to the public investors exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 7(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 7(c) above).
(e) The obligations of the Company under this Section 9 shall 7 will be in addition to any liability which that the Company may otherwise have have, and shall will extend, upon the same terms and conditionsconditions set forth in this Section 7, to each officer the respective officers and director directors of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 shall 7 will be in addition to any liability which that the respective Underwriters may otherwise have have, and shall will extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Jones Lang Lasalle Inc), Underwriting Agreement (Jones Lang Lasalle Inc)
Indemnification and Contribution. (a) The Company will (i) indemnify each Holder, each Holder's officers and hold harmless directors, and each Underwriter Person controlling such Holder within the meaning of Section 15 of the Securities Act, against any lossesall expenses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or and liabilities (or actions in respect thereof) arise including reasonable legal expenses), arising out of or are based upon an on any untrue statement (or alleged untrue statement statement) of a material fact contained in any Registration Statement or prospectus relating to the Registration StatementRegistrable Shares, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or based on any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection and (cii) below, will reimburse each Underwriter Holder for any all reasonable legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; , provided, however, that the Company shall will not be liable in any such case to the extent that any such claim, loss, claimdamage, damage liability or liability expense arises out of or is based upon an untrue statement or alleged on any untrue statement or omission or alleged omission untrue statement or omission, made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished in writing to the Company by any Underwriter of Designated Securities through the Representatives expressly such Holder for use in any thereof.
(b) Each Underwriter severally will indemnify inclusion therein; and hold harmless provided further, that the Company against shall not be liable with respect to any lossespreliminary prospectus or preliminary prospectus supplement to the extent that any such expenses, claims, losses, damages and liabilities result from the fact that Registrable Shares were sold to a Person as to whom it shall be established that there was not sent or liabilities given at or prior to which the written confirmation of such sale a copy of the prospectus as then amended or supplemented under circumstances where such delivery is required under the Securities Act, if the Company may become subjectshall have previously furnished copies thereof to such Indemnified Party in sufficient quantities to enable such Indemnified Party to satisfy such obligations and the expense, under the Act claim, loss, damage or otherwise, insofar as liability of such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon Indemnified Party results from an untrue statement or alleged untrue statement omission of a material fact contained in the preliminary prospectus or the preliminary prospectus supplement which was corrected in the prospectus.
(b) Each Holder selling shares pursuant to a Registration Statement and any agents of each Holder that facilitate the distribution of Registrable Shares will (i) indemnify the Company, each of its directors and each of its officers who signs the Registration Statement, and each Person who controls the Base ProspectusCompany within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages and liabilities (including reasonable legal fees and expenses) arising out of or based on (A) any Preliminary Prospectusuntrue statement (or alleged untrue statement) of a material fact contained in any such Registration Statement or prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or based on any Issuer Free Writing Prospectus, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement (or alleged untrue statement statement) or omission (or alleged omission was omission) is made in the such Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Statement or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusprospectus, in reliance upon and in conformity with written information furnished in writing to the Company by such Underwriter through Holder for inclusion therein, or (B) any failure by such Holder to deliver a prospectus where such delivery is required under the Representatives expressly for use therein; andSecurities Act, subject the Company shall have furnished copies of such prospectus to subsection such Holder in sufficient quantities to permit such Holder to satisfy such obligations and such prospectus corrected an untrue statement or omission of a material fact contained in a preliminary prospectus, and (cii) below, will reimburse the Company for any all reasonable legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly Each party entitled to indemnification under this Section 5 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission to so to notify the indemnifying party Indemnifying Party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only the Indemnified Party pursuant to the provisions of this Section 5 except to the extent such indemnifying party has been prejudiced of the actual damages suffered by such omission so to notifydelay in notification. In case any such action The Indemnifying Party shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofof such action, with including the employment of counsel to be chosen by the Indemnifying Party to be reasonably satisfactory to the Indemnified Party, and payment of expenses. The Indemnified Party shall have the right to employ its own counsel in any such indemnified party case, but the legal fees and expenses of such counsel shall be at the expense of the Indemnified Party, unless the employment of such counsel shall have been authorized in writing by the Indemnifying Party in connection with the defense of such action, or the Indemnifying Party shall not have employed counsel to take charge of the defense of such action or the Indemnified Party shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Indemnifying Party (who in which case the Indemnifying Party shall notnot have the right to direct the defense of such action on behalf of the Indemnified Party), in any of which events such fees and expenses shall be borne by the Indemnifying Party. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the indemnified party, be counsel to giving by the indemnifying party), and, after notice from the indemnifying party claimant or plaintiff to such indemnified party Indemnified Party of its election so to assume the defense thereof, the indemnifying party shall not be liable a release from all liability in respect to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying partylitigation.
(d) If the indemnification provided for in this Section 9 5 is unavailable to or insufficient to hold harmless a party that would have been an indemnified party Indemnified Party under subsection (a) or (b) above this Section 5 in respect of any lossesexpenses, claims, losses, damages or and liabilities (or actions in respect thereof) referred to thereinherein, then each party that would have been an Indemnifying Party hereunder shall, in lieu of indemnifying party shall such Indemnified Party, contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesexpenses, claims, losses, damages or and liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by fault of the Company Indemnifying Party on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities Indemnified Party on the other in connection with the statements statement or omissions omission which resulted in such lossesexpenses, claims, losses, damages or liabilities (or actions in respect thereof)and liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand Indemnifying Party or such Underwriters on the other Indemnified Party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters each Holder agree that it would not be just and equitable if contribution pursuant to this subsection (d) Section were determined by pro rata allocation (even if the Underwriters 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 subsection Section 5(d).
(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereofe) referred to above in this subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(ef) The obligations In no event shall any Holder be liable for any expenses, claims, losses, damages or liabilities pursuant to this Section 5 in excess of the Company under this Section 9 shall be in addition net proceeds to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director such Holder of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the ActRegistrable Shares sold by such Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Macerich Co), Registration Rights Agreement (Macerich Co)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter, the directors and officers of each Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement for the registration of the Securities as originally filed or in any amendment thereof, the Base Prospectus, or in any Preliminary Prospectus, the Pricing Prospectus or the Final Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or the information contained in the final term sheet required to be prepared and filed pursuant to Rule 433(dSection 4(b) under the Acthereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly specifically for use in connection with the preparation thereof. This indemnity agreement will be in addition to any thereofliability which the Company may otherwise have.
(b) Each Underwriter severally will and not jointly agrees to indemnify and hold harmless the Company against any lossesCompany, claimseach of its directors and officers, damages or liabilities to which and each person who controls the Company may become subject, under within the meaning of either the Act or otherwisethe Exchange Act, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentsame extent as the foregoing indemnity from the Company in Section 7(a) hereto, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives expressly specifically for use therein; andin the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (A) in the last paragraph of the cover page regarding delivery of the Securities and (B) under the heading “Underwriting”: (i) the list of Underwriters and their respective participation in the sale of the Securities and (ii) the five paragraphs related to over-allotments, subject syndicate covering transactions, stabilization transactions and penalty bids constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to subsection (c) below, will reimburse in the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredforegoing indemnity.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 7 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any liability obligations to any indemnified party which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel satisfactory to such indemnified party (who shall not, except with the consent of to represent the indemnified partyparty in such action; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume appoint counsel to defend such action and approval by the defense thereofindemnified party of such counsel, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 7 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs unless (i) the use of investigation. The counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel), approved by the Representatives in the case of paragraph (a) of this Section 7, representing the indemnified parties under subsection such paragraph (a) who are parties to such action), (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iv) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. An indemnifying party shall not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) or (b) above shall only be liable of this Section 7 is due in accordance with its terms but is for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into reason held by a settlement of any litigation in respect of which a claim is court to be made against unavailable from the indemnifying party under such subsection unless such settlement is effected with Company on grounds of policy or otherwise, the consent of Company and the indemnifying party.
(d) If Underwriters shall contribute to the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any aggregate losses, claims, damages or and liabilities (including legal or actions other expenses reasonably incurred in respect thereofconnection with investigation or defending same) referred (collectively “Losses”) to therein, then each indemnifying party shall contribute to which the amount paid Company and one or payable by such indemnified party as a result more of such losses, claims, damages or liabilities (or actions in respect thereof) the Underwriters may be subject in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and by the Underwriters of the Designated Securities on the other from the offering of the Designated Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to which reflect not only such loss, claim, damage or liability (or action in respect thereof) relates relative benefits but also the relative fault of the Company on the one hand and of the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as equal to the total net proceeds from such the offering (before deducting expenses) received by it, and benefits received by the Company bear Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by such Underwriterscommissions, in each case as set forth on the cover page of the Final Prospectus. The relative Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied provided by the Company on the one hand or such the Underwriters on the other other, the intent of the parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimabove. Notwithstanding the provisions of this subsection paragraph (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend7, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any an Underwriter within the meaning of the ActAct shall have the same rights to contribution as such Underwriter, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the preceding sentence of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d).
Appears in 2 contracts
Sources: Underwriting Agreement (Coca Cola Co), Underwriting Agreement (Coca Cola Co)
Indemnification and Contribution. (a) The Company and the Operating Partnership will jointly and severally indemnify and hold harmless each Underwriter, its partners, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter the Underwriters may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, any preliminary prospectus supplement, the Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus (as amended or supplemented) or any “issuer information” filed other prospectus relating to the Offered Securities, or required any amendment or supplement thereto (including the information deemed to be filed a part of the Registration Statement pursuant to Rule 433(d) 434 under the Act, if applicable), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter the Underwriters for any legal or other expenses reasonably incurred by such Underwriter the Underwriters in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement, the Base Prospectus, Prospectus as amended or supplemented or any Preliminary Prospectus, other prospectus relating to the Pricing Prospectus Offered Securities or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter the Underwriters for use therein, it being understood and agreed that the only such information furnished by the Underwriters consists of Designated Securities through the Representatives information described as such in subsection (b) below by the Underwriters expressly for use in any thereofthe Preliminary Prospectus, the Prospectus or the Time of Sale Information, as amended or supplemented relating to such Offered Securities.
(b) Each Underwriter Underwriter, severally and not jointly, will indemnify and hold harmless the Company, its trustees and officers and each person, if any who controls the Company within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, any preliminary prospectus supplement, the Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary ProspectusIssuer Free Writing Prospectus (as amended or supplemented) or any other prospectus relating to the Offered Securities, the Pricing Prospectus or the Prospectus, any amendment or supplement thereto (including the information deemed to any thereofbe a part of the Registration Statement pursuant to Rule 434 under the Act, or any Issuer Free Writing Prospectusif applicable), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein therein, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any preliminary prospectus, any preliminary prospectus supplement, the Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, Prospectus (as amended or supplemented) or any other prospectus relating to the Offered Securities or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives Underwriters expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as to which the Company shall be entitled to indemnification under this subsection (b) as such expenses are incurred, it being understood and agreed that the only such information furnished by the Underwriters consists of the following information in the Preliminary Prospectus, the Prospectus or the Time of Sale Information furnished by the Underwriters: the information in the first paragraph and in the first two sentences of the second paragraph under the caption “Underwriting — Price Stabilization and Short Positions.”
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only (a) or (b) above, except to the extent such indemnifying party has been prejudiced by such omission so to notifynotify the indemnifying party materially prejudices the indemnifying party. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel (unless separate counsel is required due to conflict of interest) or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromises or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Offered Securities to which such loss, claim, damage or liability (or action in respect thereof) relates relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions from such offering received by such the Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter the Underwriters shall not be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has the Underwriters have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company and the Operating Partnership under this Section 9 7 shall be in addition to any liability which the Company and the Operating Partnership may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter the Underwriters within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 7 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company who signed the Registration Statement, trustee of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Corporate Office Properties Trust), Underwriting Agreement (Corporate Office Properties Trust)
Indemnification and Contribution. (a) The Company will shall indemnify and hold harmless each Underwriter of the Underwriters against any lossesloss, claimsclaim, damages damage or liabilities, joint or several, liability to which such Underwriter the Underwriters may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement made by the Company in Section 1 hereof, or (ii) any untrue statement or alleged untrue statement of a material fact contained (A) in the Registration Statement, Statement or the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or (B) in any Issuer Free Writing Prospectus Blue Sky application or other document executed by the Company specifically for the purpose or based upon any “issuer information” written information furnished by the Company filed in any state or required other jurisdiction in order to be filed pursuant to Rule 433(d) qualify any or all of the Purchased Securities under the Actsecurities laws thereof (any such application, document or information being hereinafter called "Blue Sky Information"), or arise out of or are based upon (iii) the omission or alleged omission to state therein in the Registration Statement or the Prospectus or any amendment or supplement thereto or in any Blue Sky Information a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, will ; and shall reimburse each Underwriter of the Underwriters for any legal or other reasonable expenses reasonably as incurred by such Underwriter the Underwriters in connection with investigating or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case the person receiving them shall promptly refund them; provided, however, that the Company shall not be liable to an Underwriter in any such case to the extent extent, but only to the extent, that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any such Underwriter of Designated Securities through the Representatives expressly specifically for use in the preparation of the Registration Statement, Prospectus or any thereofamendment or supplement thereto, or any Blue Sky Information.
(b) Each Underwriter of the Underwriters, severally will but not jointly, shall indemnify and hold harmless the Company against any lossesloss, claimsclaim, damages damage or liabilities liability to which the Company may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained (A) in the Registration Statement, Statement or the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or (B) in any Issuer Free Writing ProspectusBlue Sky Information, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement or the Prospectus or any amendment or supplement thereto or in any Blue Sky Information a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon ; and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will shall reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending against any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurred.might later be held 11
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of any claim or the commencement of any action, such the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission so failure to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case If any such claim or action shall be brought against any an indemnified party party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the indemnifying party shall not be liable to such the indemnified party under such subsection for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above ; except that you shall only be liable for have the legal expenses of one right to employ counsel for all indemnified parties to represent you in each jurisdiction in which connection with any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the indemnifying party Company under such subsection unless if, in your reasonable judgment, it is advisable for you to be represented by separate counsel, and in that event the reasonable fees and expenses of such settlement is effected with separate counsel shall be paid by the consent of the indemnifying partyCompany.
(d) If the indemnification provided for in this Section 9 5 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in subsection (a) or actions in respect thereof(b) above (i) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Purchased Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof)liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering of the Purchased Securities (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwritersthe Underwriters as set forth in the Prospectus Supplement covering the Purchased Securities. The relative 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 omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in the first sentence of this subsection (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 the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any such action or claimclaim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Purchased Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.12
Appears in 2 contracts
Sources: Underwriting Agreement (Coastal Corp), Underwriting Agreement (Coastal Corp)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless the Underwriter and each person, if any, who controls the Underwriter against any losses, claims, damages or liabilities, joint or several, to which such the Underwriter or controlling person may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, any “road show” (as defined in Rule 433 under the Securities Act) not constituting an Issuer Free Writing Prospectus (a “Non-Prospectus Road Show”) or arise out of or are based upon the omission or alleged omission to state therein a material fact fact, in the case of the Registration Statement or any amendment thereto, required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus or any supplement thereto, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, a Non-Prospectus Road Show or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and, subject to subsection (c) below, and will reimburse each the Underwriter for any legal or other expenses reasonably incurred by such the Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any such amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, Prospectus or any Non-Prospectus Road Show (i) in reliance upon and in conformity with written information furnished to the Company by any the Underwriter of Designated Securities through the Representatives expressly for use therein, including, without limitation, the Underwriter Provided Portions, or (ii) made by the Underwriter and not based upon any statement set forth in the Registration Statement, the Prospectus or any thereofsuch amendment or supplement thereto, any Issuer Free Writing Prospectus, or any other communication authorized to be released by the Company in connection with the issuance and sale of the Notes (“Unauthorized Representations”).
(b) Each The Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or any Issuer Free Writing ProspectusProspectus or any Non-Prospectus Road Show, or arise out of or are based upon the omission or alleged omission to state therein a material fact fact, in the case of the Registration Statement or any amendment thereto, required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus or any supplement thereto, any Issuer Free Writing Prospectus or any Non-Prospectus Road Show, necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any such amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, Prospectus or any Non-Prospectus Road Show (i) in reliance upon and in conformity with written information furnished to the Company by such the Underwriter through the Representatives expressly for use therein; and, subject to subsection including, without limitation, the Underwriter Provided Portions, or (cii) belowwas made as an Unauthorized Representation, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but provided, however, that the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only except to the extent such indemnifying that the indemnified party has been is materially prejudiced by such omission so to notifythereby. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a claim is statement as to be made against the or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. No indemnifying party under such subsection unless such shall be liable for any settlement is of any action or claim effected with the without its written consent, which consent of the indemnifying partyshall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities Underwriter on the other from the offering of the Designated Securities Notes. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities Underwriter on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters the Underwriter on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company Company, bear to the total underwriting discounts and commissions received by such Underwritersthe Underwriter, in each case as set forth in the table on the cover page of the Prospectus and the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters the Underwriter 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 Underwriters Underwriter agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were Underwriter was 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 subsection (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 subsection (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 subsection (d), ) no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 Underwriter’s obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any the Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters Underwriter under this Section 9 8 shall be in addition to any liability which the respective Underwriters Underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Environmental Power Corp), Underwriting Agreement (Environmental Power Corp)
Indemnification and Contribution. (ai) The In the event of any registration under the Securities Act of any Registrable Stock of Investors pursuant to this Section 6, the Company will hereby covenants and agrees to indemnify and hold harmless each Underwriter Investor and their respective partners, directors, officers and control persons (within the meaning of Section 15 of the Securities Act) disposing of such Registrable Stock (collectively, “Indemnified Persons”) from and against any losses, claims, damages or liabilities, joint or several, including reimbursement for legal and other expenses to which such Underwriter Indemnified Person may become subject, subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus contained therein (in the Registration Statementcase of any prospectus or preliminary prospectus, in light of the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus circumstances under which they were made) or the Prospectus, in any amendment or supplement thereto or in any preliminary prospectus relating to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Acta Shelf Registration, or arise out of of, or are based upon upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading (in the case of any prospectus or preliminary prospectus, andin light of the circumstances under which they were made), subject to subsection (c) belowand shall reimburse, will reimburse each Underwriter as incurred, the Indemnified Persons for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such loss, claim, damage, liability or action or claim as such expenses are incurredin respect thereof; provided, however, that (i) the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any untrue statement or alleged untrue statement or omission or alleged omission made in the a Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Statement or the Prospectus, prospectus or in any amendment or supplement thereto or in any preliminary prospectus relating to any thereof, or any Issuer Free Writing Prospectus, a Shelf Registration in reliance upon and in conformity with written information pertaining to such Investor and furnished to the Company by or on behalf of such Investor specifically for inclusion therein and (ii) with respect to any Underwriter of Designated Securities through the Representatives expressly for use untrue statement or omission or alleged untrue statement or omission made in any thereofpreliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this Section 6(g)(i) shall not inure to the benefit of any Investor from whom the person asserting any such losses, claims, damages or liabilities purchased the Registrable Stock concerned, to the extent that a prospectus relating to such Registrable Stock was required to be delivered by such Investor or underwriter under the Securities Act in connection with such purchase and any such loss, claim, damage or liability of such Investor results from the fact that there was not sent or given to such Person, at or prior to the written confirmation of the sale of such Registrable Stock to such Person, a copy of the final prospectus if the Company had previously furnished a copy thereof to such Investor; provided, further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Person. The Company shall also indemnify underwriters in connection with a disposition of Registrable Stock by the Investors, and such underwriters’ respective directors, officers and control persons (within the meaning of Section 15 of the Securities Act) to the same extent as provided above with respect to the indemnification of the such Investors if requested by a majority of such Investors.
(bii) Each Underwriter In the event of any registration under the Securities Act of any Registrable Stock of Investors pursuant to this Section 6, each Investor, severally will and not jointly, hereby covenants and agrees to indemnify and hold harmless the Company and its directors, officers and control persons (within the meaning of Section 15 of the Securities Act) from and against any losses, claims, damages or liabilities to which the Company or any such controlling person may become subject, subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or damages, liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the a Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Statement or the Prospectus, prospectus or in any amendment or supplement thereto or in any preliminary prospectus relating to any thereof, or any Issuer Free Writing Prospectusa Shelf Registration, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case to the extent, but only to the extent that such the untrue statement or omission or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information pertaining to such Investor and furnished to the Company by or on behalf of such Underwriter through the Representatives expressly Investor specifically for use inclusion therein; and, subject to subsection (c) belowthe immediately preceding limitation, will reimburse shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, claim, damage, liability or action in respect thereof. This indemnity agreement will be in addition to any liability which such action Holder may otherwise have to the Company, its directors, officers or claim as such expenses are incurredany of its control persons (within the meaning of Section 15 of the Securities Act).
(ciii) Promptly after receipt by an indemnified party under subsection (athis Section 6(g) or (b) above of notice of the commencement of any actionaction or proceeding (including a governmental investigation), such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 6(g), notify the indemnifying party in writing of the commencement thereof; but provided, that the omission so failure to notify the indemnifying party shall not relieve it from any liability that it may have under subsection (i) or (ii) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability which that it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify(i) or (ii) above. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, thereof the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 6(g) for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof. The No indemnifying party under subsection (a) or (b) above shall only be liable for shall, without the legal expenses prior written consent of one counsel for all the indemnified parties in each jurisdiction in which party, effect any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation pending or threatened action in respect of which any indemnified party is or could have been a claim is to be made against the indemnifying party under and indemnity could have been sought hereunder by such subsection indemnified party unless such settlement is effected with (x) includes an unconditional release of such indemnified party from all liability on any claims that are the consent subject matter of the indemnifying such action, and (y) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(div) If The agreements contained in this Section 6(g) shall survive the indemnification sale of the Registrable Stock pursuant to a Registration Statement and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party.
(v) In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in this Section 9 6 is unavailable for any reason held to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above be unenforceable although applicable in accordance with its terms in respect of any losses, liabilities, claims, damages or liabilities (or actions in respect thereof) damages, judgments and expenses suffered by an indemnified party referred to thereinherein, then each applicable indemnifying party party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, liabilities, claims, damages or liabilities (or actions in respect thereof) damages, judgments and expenses in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities liable selling holders (including, in each case, that of their respective officers, directors, employees and agents) on the other in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages damages, judgments or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefits received by fault of the Company on the one hand and such Underwriters of the liable selling holders (including, in each case, that of their respective officers, directors, employees and agents) on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company Company, on the one hand hand, or such Underwriters by or on behalf of the selling holders, on the other other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, liabilities, claims, damages, judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in paragraph (vi) of this Section 6(g), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.
(vi) The Company and the Underwriters each holder of Registrable Stock agree that it would not be just and equitable if contribution pursuant to this subsection paragraph (dvi) were determined by pro rata allocation (even if the Underwriters 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 subsection paragraph (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereofv) referred to above in this subsection (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 claimabove. Notwithstanding the provisions of this subsection paragraph (dvi), no Underwriter in the case of distributions to the public, an indemnifying holder shall not be required to contribute any amount in excess of the amount by which (A) the total price at which the applicable Designated Securities underwritten Registrable Stock sold by it such indemnifying holder and its Affiliated indemnifying holders and distributed to the public were offered to the public exceeds (B) the amount of any damages which such Underwriter indemnifying holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 2 contracts
Sources: Stockholders Agreement (Amc Entertainment Inc), Stockholders Agreement (Marquee Holdings Inc.)
Indemnification and Contribution. (a) The In the event of any registration under the Securities Act pursuant to this Article VII of any Registrable Securities, the Company will indemnify and hold harmless each Underwriter the Holder thereof against any losses, claims, damages damages, liabilities or liabilitiesexpenses, joint or several, to which such Underwriter Holder may become subject, ; under the Securities Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a any material fact contained contained, on the effective date thereof, in any registration statement under which such securities were registered under the Registration Statement, the Base ProspectusSecurities Act, any Preliminary Prospectuspreliminary prospectus or final prospectus contained therein, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter such Holder for any legal or any other expenses reasonably incurred by such Underwriter Holder in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage damage, liability or liability expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statementsuch registration statement, the Base Prospectuspreliminary prospectus, any Preliminary Prospectus, the Pricing Prospectus prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter such Holder or an underwriter on behalf of Designated Securities through the Representatives such Holder expressly for use in therein; and provided further that the foregoing indemnity agreement with respect to any thereof.prospectus shall not inure to the benefit of the Holder if it is conclusively determined by a court of competent jurisdiction not subject to appeal that a copy of a prospectus was not sent or given by or on behalf of the Holder to the purchaser of the Common Stock who has asserted a claim, if required by law to have been so delivered, at or prior to the written confirmation of the sale of Common Stock to such person, and if a prospectus would have cured the defect giving rise to such loss, claim, damage or liability;
(b) Each Underwriter severally will Holder of Registrable Securities, by acceptance of the registration provisions provided herein, agrees to indemnify and hold harmless the Company against any losses, claims, damages damages, liabilities or liabilities expenses, joint or several, to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement under which securities were registered under the Registration Statement, Securities Act at the Base Prospectusrequest of such Holder, any Preliminary Prospectuspreliminary prospectus or final prospectus contained therein, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statementany such registration statement, the Base Prospectuspreliminary prospectus, any Preliminary Prospectus, the Pricing Prospectus prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives Holder expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the an indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only except to the extent such indemnifying party it has been materially prejudiced by such omission so to notifyfailure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who which shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 7.06 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (bc) above in respect of any losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) referred to thereintherein or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities relevant Holder on the other in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters the relevant 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 Underwriters each Holder registering securities under this Article VII agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter Holder registering securities under this Article VII shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten securities registered and sold by it and distributed to the public were offered to the public such Holder exceeds the amount of any damages which such Underwriter Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 7.06 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director person (including each underwriter) who participated in the offering of any Underwriter the registered securities and to each person, if any, who controls any Underwriter Holder registering securities under this Article VII or any such person (including each such underwriter) within the meaning of Section 15 of the Securities Act, ; and the obligations of the Underwriters under this Section 9 7.06 of any Holder registering securities under this Article VII shall be in addition to any liability which the respective Underwriters such Holder may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act.
Appears in 2 contracts
Sources: Series a Convertible Preferred Stock Purchase Agreement (Eccs Inc), Series a Convertible Preferred Stock Purchase Agreement (Eccs Inc)
Indemnification and Contribution. (a) The Company will Primary Entities, jointly and severally, agree to indemnify and hold harmless you and each other Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages or liabilitiesdamages, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities and expenses (or actions in respect thereofincluding reasonable costs of investigation) arise arising out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Statutory Prospectus or the Prospectus, Prospectus or in any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, Act or arise arising out of or are based upon the any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim except insofar as such losses, claims, damages, liabilities or expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises arise out of or is are based upon an any untrue statement or omission or alleged untrue statement or omission which has been made therein or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, omitted therefrom in reliance upon and in conformity with written the information relating to such Underwriter furnished in writing to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives you expressly for use in connection therewith. The foregoing indemnity agreement shall be in addition to any thereofliability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any Underwriter or any person controlling any Underwriter in respect of which indemnity may be sought against the Primary Entities, such Underwriter or such controlling person shall promptly notify the Company (but failure to so notify the Company shall not relieve the Company from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement) and the Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. Such Underwriter or any such controlling person shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person unless (i) the Primary Entities jointly and severally have agreed in writing to pay such fees and expenses, (ii) the Company has failed promptly to assume the defense and employ counsel, or (iii) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Underwriter or such controlling person and a Primary Entity and such Underwriter or such controlling person shall have been advised by its counsel that representation of such indemnified party and a Primary Entity by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Underwriter or such controlling person). It is understood, however, that the Company shall, in connection with any one such action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for all such Underwriters and controlling persons not having actual or potential differing interests with you or among themselves, which firm shall be designated in writing by the Representatives, and that all such fees and expenses shall be reimbursed as they are incurred. The Primary Entities shall not be liable for any settlement of any such action, suit or proceeding effected without the Company’s written consent, but if settled with such written consent, or if there be a final judgment for the plaintiff in any such action, suit or proceeding, the Primary Entities jointly and severally agree to indemnify and hold harmless any Underwriter, to the extent provided in the preceding paragraph, and any such controlling person from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally will and not jointly, to indemnify and hold harmless the Company against Company, its directors, its officers who sign the Registration Statement, and any losses, claims, damages or liabilities to which person who controls the Company may become subject, under within the meaning of Section 15 of the Act or otherwiseSection 20 of the Exchange Act, insofar to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with respect to information relating to such losses, claims, damages Underwriter furnished in writing by or liabilities (or actions in respect thereof) arise out on behalf of or are based upon an untrue statement or alleged untrue statement of a material fact contained such Underwriter through you expressly for use in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out any amendment or supplement thereto. If any action, suit or proceeding shall be brought against the Company, any of its directors, any such officer, or are any such controlling person based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in on the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon or any amendment or supplement thereto, and in conformity with written information furnished respect of which indemnity may be sought against any Underwriter pursuant to this paragraph (c), such Underwriter shall have the rights and duties given to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or paragraph (b) above of notice of (except that if the commencement of any action, Company shall have assumed the defense thereof such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party Underwriter shall not relieve the indemnifying party from any liability which it be required to do so, but may have to any indemnified party otherwise than under such subsection employ separate counsel therein and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume in the defense thereof, with but the fees and expenses of such counsel satisfactory to shall be at such indemnified party (who Underwriter’s expense), and the Company, its directors, any such officer, and any such controlling person shall not, except with have the consent of the indemnified party, be counsel rights and duties given to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred Underwriters by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or paragraph (b) above above. The foregoing indemnity agreement shall only be liable for in addition to any liability which the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying partyUnderwriters may otherwise have.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection paragraph (a) or (bc) above hereof in respect of any losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to therein, then each an indemnifying party party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages damages, liabilities or liabilities expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Primary Entities on the one hand and the Underwriters on the other hand from the offering of the Shares, or actions in respect thereof(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by referred to in clause (i) above but also the Company relative fault of the Primary Entities on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which that resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company Primary Entities on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Primary Entities on the one hand and the Underwriters on the other hand 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 omissions omission to state a material fact relates to information supplied by the Company Primary Entities on the one hand or such by the Underwriters on the other hand and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. .
(e) The Company Primary Entities, on the one hand and the Underwriters Underwriters, on the other hand, agree that it would not be just and equitable if contribution pursuant to this subsection (d) Section 7 were determined by a pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection paragraph (d)) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or damages, liabilities (or actions in respect thereof) and expenses referred to above in this subsection paragraph (d) above shall be deemed to include include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating any claim or defending any such action action, suit or claimproceeding. Notwithstanding the provisions of this subsection (d)Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which of the applicable Designated Securities Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute pursuant to this Section 7 are several in proportion to the respective numbers of Firm Shares set forth opposite their respective underwriting obligations with respect to names in Schedule I (or such securities number of Firm Shares increased as set forth in Section 9 hereof) hereto and not joint.
(ef) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(g) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 7(b) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, an indemnifying party shall not be liable for any settlement of the nature contemplated by Section 7(b) effected without its consent if such indemnifying party (i) reimburses such indemnified party in accordance with such request to the extent such indemnifying party considers such request to be reasonable and (ii) provides written notice to the indemnified party substantiating the unpaid balance as unreasonable, in each case prior to the date of such settlement.
(h) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section 7 shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The obligations indemnity and contribution agreements contained in this Section 7 and the representations and warranties of the Company under set forth in this Section 9 Agreement shall be remain operative and in addition to full force and effect, regardless of (i) any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director investigation made by or on behalf of any Underwriter or any person controlling any Underwriter, the Company, its directors or officers, or any person controlling the Company, (ii) acceptance of any Shares and payment therefor hereunder, and (iii) any termination of this Agreement. A successor to each person, if any, who controls any Underwriter within or any person controlling any Underwriter, or to the meaning Company, its directors or officers, or any person controlling the Company, shall be entitled to the benefits of the Actindemnity, contribution and the obligations of the Underwriters under reimbursement agreements contained in this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act7.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Ps Business Parks Inc/Ca), Underwriting Agreement (Ps Business Parks Inc/Ca)
Indemnification and Contribution. (a) The Company will shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act, against any lossesand all loss, claimsliability, damages claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or liabilitiesdefending against any litigation, joint commenced or severalthreatened, to which such Underwriter or any claim whatsoever or in connection with any investigation or inquiry of, or action or proceeding that may become subjectbe brought against, under the Act or otherwiserespective indemnified parties, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise arising out of or are based upon an any breach of the representations and warranties of the Company made in this Agreement or any untrue statement statements or alleged untrue statement statements of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Disclosure Package or the Prospectus, any amendment application or supplement other document filed in any jurisdiction in order to qualify all or any thereofpart of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they are made, not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company foregoing indemnity shall not be liable apply in respect of any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; andin any Preliminary Prospectus, subject the Registration Statement or Prospectus, or any amendment or supplement thereto, or in any application or in any communication to subsection the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of such Underwriter if a copy of the Prospectus (cas then amended and supplemented) belowwas not sent or given by or on behalf of such Underwriter to the person asserting any losses, will reimburse claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of the Company for under this Section 10(a) will be in addition to any legal or other expenses reasonably incurred by liability the Company may otherwise have. The indemnification obligations of the Company and each of the Selling Shareholders shall be several and not joint.
(b) The Trust shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act against any and all loss, liability, claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever or in connection with investigating any investigation or defending any such inquiry of, or action or claim proceeding that may be brought against, the respective indemnified parties, arising out of or based upon any breach of the representations and warranties of the Trust made in this Agreement or any untrue statements or alleged untrue statements of material fact contained in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any jurisdiction in order to qualify all or any part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or the omission or alleged omission from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to each Underwriter by the Trust expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of the Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of the Underwriter to the person asserting any losses, claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such expenses are incurredlosses, claims, damages or liabilities. The obligations of the Trust under this Section 10(b) will be in addition to any liability the Trust may otherwise have. The indemnification obligations of the Company and each of the Selling Shareholders shall be several and not joint.
(c) Promptly after receipt ▇▇▇▇▇ shall indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act and the Exchange Act against any and all loss, liability, claim, damage and expense whatsoever, including, but not limited to, any and all reasonable expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever or in connection with any investigation or inquiry of, or action or proceeding that may be brought against, the respective indemnified parties, arising out of or based upon any breach of the representations and warranties of ▇▇▇▇▇ made in this Agreement or any untrue statements or alleged untrue statements of material fact contained in the Registration Statement, any Preliminary Prospectus, the Disclosure Package or the Prospectus, any application or other document filed in any jurisdiction in order to qualify all or any part of the Shares under the securities laws thereof or filed with the SEC or FINRA (in this Section 10 collectively called “application”), or the omission or alleged omission from any of the foregoing of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to each Underwriter by an indemnified party ▇▇▇▇▇ expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be and provided further that the foregoing indemnification with respect to any Preliminary Prospectus shall not inure to the benefit of the Underwriter if a copy of the Prospectus (as then amended and supplemented) was not sent or given by or on behalf of the Underwriter to the person asserting any losses, claims, damages or liabilities, and if the Prospectus (as amended and supplemented) would have cured the defect giving rise to such losses, claims, damages or liabilities. The obligations of ▇▇▇▇▇ under subsection this Section 10(b) will be in addition to any liability ▇▇▇▇▇ may otherwise have. The indemnification obligations of the Company and each of the Selling Shareholders shall be several and not joint.
(ad) Each Underwriter severally and not jointly shall indemnify and hold harmless the Company, the Selling Shareholders, each of the directors of the Company, each of the officers of the Company who shall have signed the Registration Statement, and each other person, if any, who controls the Company or the Selling Shareholders within the meaning of the Act and the Exchange Act, to the same extent as the foregoing indemnities from the Company and the Selling Shareholders to the Underwriters, but only with respect to any and all loss, liability, claim, damage or expense resulting from statements or omissions, or alleged statements or omissions, if any, made in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof or any application or in any communication to the SEC in reliance upon, and in conformity with written information furnished to the Company and the Selling Shareholders by any Underwriter through the Representative expressly for use in any Preliminary Prospectus, the Disclosure Package, the Registration Statement or the Prospectus or any amendment or supplement thereof, or any application or in any communication to the SEC, as the case may be. The obligations of each Underwriter under this Section 10 will be in addition to any liability which such Underwriter may otherwise have.
(e) If any action, inquiry, investigation or proceeding is brought against any person in respect of which indemnification may be sought pursuant to Section 10(a), (b), (c) or (bd) above hereof, such person (hereinafter called the “indemnified party”) shall, promptly after notification of, or receipt of notice service of the commencement of any process for, such action, such indemnified inquiry, investigation or proceeding, notify in writing the party shall, if a claim in respect thereof or parties against whom indemnification is to be made against sought (hereinafter called the “indemnifying party”) of the institution of such action, inquiry, investigation or proceeding. The indemnifying party, upon the request of the indemnified party, shall assume the defense of such action, inquiry, investigation or proceeding, including, without limitation, the employment of counsel (reasonably satisfactory to such indemnified party) and payment of expenses. No indemnification provided for in this Section 10 shall be available to any indemnified party who shall fail to give such notice if the indemnifying party under does not have knowledge of such subsectionaction, notify inquiry, investigation or proceeding to the extent that such indemnifying party in writing of has been materially prejudiced by the commencement thereof; failure to give such notice, but the omission to so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only this Section 10. Such indemnified party shall have the right to the extent such indemnifying party has been prejudiced by such omission so to notify. In case employ its or their own counsel in any such action case, but the fees and expenses of such counsel shall be brought against any at the expense of such indemnified party and it unless the employment of such counsel shall notify have been authorized in writing by the indemnifying party in connection with the defense of the commencement thereof, such action or if the indemnifying party shall be entitled not have, within a reasonable period of time in light of the circumstances, employed counsel reasonably satisfactory to participate therein andthe indemnified party, to have charge of the extent defense of such action, inquiry, investigation or proceeding or if such indemnified party or parties shall have been advised by counsel that it shall wish, jointly with any other there may be a conflict between the positions of the indemnifying party similarly notified, to assume or parties and of the defense thereof, with counsel satisfactory indemnified party or parties or that there may be legal defenses available to such indemnified party (who or parties different from or in addition to those available to the indemnifying party or parties, in any of which events the indemnified party or parties shall notbe entitled to select counsel to conduct the defense to the extent determined by such counsel to be necessary to protect the interests of the indemnified party or parties, except with and the reasonable fees and expenses of such counsel shall be borne by the indemnifying party. The indemnifying party shall be responsible for the fees and disbursements of only one such counsel so engaged by the indemnified party or parties as a group. Expenses covered by the indemnification in this Section 10 shall be paid by the indemnifying party promptly after written request is submitted by the indemnified party. In the event that it is determined that the indemnified party was not entitled to receive payments for expenses pursuant to this Section 10, the indemnified party shall return all sums that have been paid pursuant hereto. No indemnifying party shall, without the prior written consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying effect any settlement of any pending or threatened action in respect of which any indemnified party to is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes an unconditional release of its election so such indemnified party from all liability on any claims that are the subject matter of such action. Anything in this Section 10 to assume the defense thereof, the contrary notwithstanding an indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses settlement of other counsel or any other expensesa claim affected without its written consent, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above consent shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying partyunreasonably withheld.
(df) If the indemnification provided for in this Section 9 10 is unavailable to or insufficient to hold harmless an indemnified party under subsection Section 10(a), (ab), (c) or (bd) above hereof in respect of any losses, liabilities, claims, damages or liabilities expenses (or actions actions, inquiries, investigations or proceedings in respect thereof) referred to therein, except by reason of the failure to give notice as required in Section 10(e) hereof (provided that the indemnifying party does not have knowledge of the action, inquiry, investigation or proceeding and to the extent such party has been materially prejudiced by the failure to give such notice), then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, liabilities, claims, damages or liabilities expenses (or actions actions, inquiries, investigations or proceedings in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on Company, the one hand Selling Shareholders, and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to which such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on Company, the one hand Selling Shareholders, and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claimsliabilities, damages claims or liabilities expenses (or actions actions, inquiries, investigations or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on and the one hand and such Underwriters on the other Selling Shareholders shall be deemed to be in the same proportion as equal to the total net proceeds from such the offering (before deducting expenses) received by them, respectively, and benefits received by the Company bear Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by such Underwriterscommissions, in each case as set forth on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on Company, the one hand Selling Shareholders, or such the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, the Selling Shareholders, and the Underwriters agree that it would not be just and equitable if contribution pursuant contributions to this subsection (dSection 10(f) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (dSection 10(f). The amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages or liabilities expenses (or actions actions, inquiries, investigations or proceedings in respect thereof) referred to above in this subsection (dSection 10(f) 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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.suc
Appears in 2 contracts
Sources: Underwriting Agreement (Osborne Richard M), Underwriting Agreement (Gas Natural Inc.)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter and their respective directors, officers and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the ActRules and Regulations, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, or the Registration Statement or Prospectus as amended or supplemented or any Issuer Free Writing Prospectus, any such issuer information, a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company shall will not be liable under this Section 7(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter the Representatives, on behalf of Designated Securities through the Representatives Underwriters, expressly for use therein (which information is specified in any thereofSection 12 hereof).
(b) Each Underwriter severally Underwriter, severally, but not jointly, will indemnify and hold harmless the Company, its directors, officers and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company as the case may be, promptly after receipt of invoices from the Company as the case may be, for any legal or other expenses reasonably incurred by the Company as the case may be, in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Representatives, on behalf of such Underwriter through the Representatives Underwriter, expressly for use therein; and, subject to subsection therein (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company which information is specified in connection with investigating or defending any such action or claim as such expenses are incurredSection 12 hereof).
(c) Promptly after receipt by an any indemnified party under subsection (aSection 7(a) or (b7(b) above of notice of any claim or the commencement of any action, such the indemnified party shallwill, if a claim in respect thereof is to be made against the one or more indemnifying party parties under such subsection, notify the each indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the each such indemnifying party shall will not relieve it from any liability which it may have under this Section 7 except to the indemnifying party extent it has been prejudiced in any material respect by such failure or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case If any such claim or action shall will be brought against any indemnified party party, and it shall notify the notifies each indemnifying party of the commencement thereof, the each such indemnifying party shall will be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any each other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the each indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the each such indemnifying party shall will not be liable to such the indemnified party under such subsection Section 7(a) or 7(b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only , except that the Underwriters will have the right to employ counsel to represent the Underwriters who may be liable for the legal expenses subject to liability arising out of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the Company under Section 7(a) if (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Underwriters will have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company and in the judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company has failed to assume the defense of such action and employ counsel satisfactory to the Underwriters, in which event the fees and expenses of such separate counsel will be paid by the Company. No indemnifying party under will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such subsection claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent will not be unreasonably withheld), but if settled with the consent of each indemnifying party or if there be a final judgment of the plaintiff in any such action, each such indemnifying partyparty agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 7(a) or (b7(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in Section 7(a) or 7(b) above (or actions in respect thereofi) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall hand will be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative Relative fault shall will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (dSection 7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (dSection 7(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 the first sentence of this subsection (dSection 7(d) shall will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this Section 7(d). Notwithstanding the provisions of this subsection (dSection 7(d), no Underwriter shall will be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public investors were offered to the public investors exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 7(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 7(c) above).
(e) The obligations of the Company under this Section 9 shall 7 will be in addition to any liability which that the Company may otherwise have have, and shall will extend, upon the same terms and conditionsconditions set forth in this Section 7, to each officer the respective officers and director directors of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 shall 7 will be in addition to any liability which that the respective Underwriters may otherwise have have, and shall will extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Centene Corp), Underwriting Agreement (Centene Corp)
Indemnification and Contribution. (a) The Company will shall indemnify and hold harmless each Underwriter from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement made by the Company in Section 1 hereof, (ii) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d(iii) under the Act, or arise out of or are based upon the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus or the Registration Statement or Prospectus as amended or supplemented a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, will ; and shall reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments shall be promptly refunded; provided, however, that the Company shall not be liable under this paragraph 6(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives Underwriters expressly for use in the preparation of the Registration Statement, any thereofPreliminary Prospectus, the Prospectus or the Registration Statement or Prospectus as amended or supplemented; provided, further that with respect to any untrue statement or omission or alleged untrue statement or omission made in any Preliminary Prospectus, which untrue statement or omission or alleged untrue statement or omission in such Preliminary Prospectus was corrected in the Prospectus, the indemnity agreement contained in this paragraph 6(a) shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) to the extent that any such loss, claim, damage or liability results from the fact that a copy of the Prospectus was not sent or given to the person asserting any such losses, claims, damages or liabilities at or prior to the written confirmation of the sale of the Notes concerned to such person by such Underwriter (provided that the Company shall have complied with the provisions of Section 4(a) and (c) hereof and such Underwriter shall have been provided with the number of copies of such Prospectus requested by such Underwriter in a timely manner) and it is judicially determined that such delivery was required under the Securities Act and was not so made.
(b) Each Underwriter severally will severally, but not jointly, shall indemnify and hold harmless the Company against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus or the Registration Statement or Prospectus as amended or supplemented a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading and shall reimburse the Company promptly after receipt of invoices from the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments shall be promptly refunded; provided, however, that such indemnification or reimbursement shall be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an any indemnified party under subsection (a) or (b) above of notice of any claim or the commencement of any action, such the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 6 except to the indemnifying party extent it has been prejudiced in any material respect by such failure or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 6. In case If any such claim or action shall be brought against any indemnified party party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the indemnifying party shall not be liable to such the indemnified party under such subsection (a) or (b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above ; except that the Underwriters shall only have the right to employ counsel to represent the Underwriters who may be liable for the legal expenses subject to liability arising out of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the indemnifying party Company under such subsection if (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Underwriters shall have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company and in the reasonable judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company has failed to assume the defense of such action and employ counsel reasonably satisfactory to the Underwriters, in which event the fees and expenses of such separate counsel shall be paid by the Company. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying partyparty or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 6 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in subsection (a) or actions in respect thereof(b) above (i) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative 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 omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (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 the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 Underwriters' obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it shall promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service shall not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in subsection (c) above).
(e) The obligations of the Company under this Section 9 6 shall be in addition to any liability which that the Company may otherwise have have, and shall extend, upon the same terms and conditionsconditions set forth in this Section 6, to each officer the respective officers and director directors of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 6 shall be in addition to any liability which that the respective Underwriters may otherwise have have, and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 2 contracts
Sources: Underwriting Agreement (Dynegy Holdings Inc), Underwriting Agreement (Dynegy Holdings Inc)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter the Placement Agent, its affiliates and any person acting on its behalf against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (the “Covered Claims”), to which the Placement Agent may become subject, insofar as such Covered Claims arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofConfidential Memorandum, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d(ii) under the Act, or arise out of or are based upon the omission or alleged omission to state therein in the Confidential Memorandum a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, subject to subsection (c) below, . The Company will reimburse each Underwriter the Placement Agent for any legal or other expenses reasonably incurred by such Underwriter the Placement Agent in connection with investigating or defending any such action or claim as such expenses are incurred; providedCovered Claims. Notwithstanding the foregoing, however, that the Company shall not be liable to so indemnify or reimburse the Placement Agent in any such case to the extent that any such loss, claim, damage or liability arises Covered Claims arise out of or is are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, Confidential Memorandum in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives Placement Agent expressly for use therein. The Company acknowledges and agrees that as of the date hereof the Placement Agent has not provided any information in any thereofconnection with the Confidential Memorandum.
(b) Each Underwriter severally The Placement Agent will indemnify and hold harmless the Company Company, its affiliates and any person acting on its behalf against any losses, claims, damages or liabilities Covered Claims to which the Company may become subject, under the Act or otherwise, subject insofar as such losses, claims, damages or liabilities (or actions in respect thereof) Covered Claims arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofConfidential Memorandum, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Confidential Memorandum a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing ProspectusConfidential Memorandum, in reliance upon and in conformity with the written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject Placement Agent referred to in subsection (ca) below, above; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredCovered Claims.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission to so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be is brought against any indemnified party and it shall notify such indemnified party notifies the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such indemnified party of its the indemnifying party’s election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 10 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of to any losses, claims, damages or liabilities (or actions in respect thereof) Covered Claims referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified indemnifying party as a result of such lossesCovered Claims in such proportion as is appropriate to reflect the relative benefits received by the Company and the Placement Agent from the offering of the Shares. If, claimshowever, damages the allocation provided by the immediately preceding sentence is not permitted by applicable law or liabilities if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or actions in respect thereof) payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other Placement Agent in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)Covered Claims, as well as any other relevant equitable considerations. The relative benefits received by the Company on and the one hand and such Underwriters on the other Placement Agent shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear relative to the value of total underwriting discounts and commissions compensation, if any, received by such Underwritersthe Placement Agent in selling the Shares under this Agreement. 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 omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other Placement Agent and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters Placement Agent agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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) Covered Claims referred to above in this subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not jointCovered Claims.
(e) The obligations of the Company under this Section 9 10 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter the Placement Agent within the meaning of the Securities Act, to affiliates of the Placement Agent and to any person acting on behalf of any such persons; and the obligations of the Underwriters Placement Agent under this Section 9 10 shall be in addition to any liability which the respective Underwriters Placement Agent may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act.
(f) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 10 shall not be construed so as to provide for the indemnification of any indemnified party for any liability for a Covered Claim (including liability under federal securities laws which, under certain circumstances, impose liability on persons that act in good faith) to the extent (but only to the extent) that such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the provisions of this Section 10 to the fullest extent permitted by law.
Appears in 2 contracts
Sources: Placement Agent Agreement (Goldman Sachs Real Estate Finance Trust Inc), Placement Agent Agreement (Goldman Sachs Real Estate Finance Trust Inc)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, (i) any Preliminary Prospectus, the Pricing Registration Statement or the Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or (ii) any Issuer Free Writing Prospectus or in any amendment or supplement thereto or (iii) any Permitted Issuer Information used or referred to in any “issuer informationfree writing prospectus” filed (as defined in Rule 405 of the Rules and Regulations) used or required referred to be filed pursuant to Rule 433(d) under the Actby any Underwriter, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and promptly will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Issuer Free Writing Prospectus or the Prospectus, any amendment or supplement to thereto or in any thereof, or any Permitted Issuer Free Writing Prospectus, Information in reliance upon and in conformity with with, in the case of an Underwriter, written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly by or on behalf of any Underwriter specifically for use inclusion therein. The Company acknowledges that the only information furnished through the Representatives by or on behalf of any Underwriter consists of statements set forth in any thereofthe third, seventh, twelfth, fourteenth and sixteenth paragraphs in “Underwriting.”
(b) Each Underwriter of the Selling Shareholders will, severally will and not jointly, indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Company or such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or any amendment or supplement thereto in reliance upon and in conformity with information relating to a Selling Shareholder furnished to the Company in writing by such Selling Shareholder expressly for use therein; and will reimburse the Company and each Underwriter for any legal or other expenses reasonably incurred by the Company or such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Each Underwriter will, severally and not jointly, indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each Selling Shareholder from and against any losses, claims, damages or liabilities to which the Company or such Selling Shareholder may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, or any such amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company and each Selling Shareholder for any legal or other expenses reasonably incurred by the Company and each Selling Shareholder in connection with investigating or defending any such action or claim as such expenses are incurred. The Company acknowledges that the only information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) are the statements set forth in Section 8(a) above.
(cd) Promptly after receipt by an indemnified party under subsection (a), (b) or (bc) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which that it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(de) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (bc) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company and the Selling Shareholders in question, on the one hand hand, and the Underwriters of the Designated Securities Underwriters, on the other other, from the offering of the Designated Securities Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (d) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Selling Shareholders in question, on the one hand hand, and the Underwriters of the Designated Securities Underwriters, on the other other, in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Shareholders, on the one hand hand, and such Underwriters the Underwriters, on the other other, shall be deemed to be in the same proportion as the total net proceeds from such the offering of the Shares purchased under this Agreement (after deducting the total underwriting discount, but before deducting expenses) received by the Company and the Selling Shareholders in question bear to the total underwriting discounts and commissions received by such Underwriterspayable to the Underwriters in each case as set forth in the table on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company or the Selling Shareholders, on the one hand hand, or such Underwriters the Underwriters, on the other other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, each of the Selling Shareholders and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (de) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (de). 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 subsection (de) 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 subsection (de), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (de) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(ef) The obligations of the Company and the Selling Shareholders under this Section 9 8 shall be in addition to any liability which that the Company and the respective Selling Shareholder may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company and Selling Shareholder within the meaning of the Securities Act.
(g) The liability of each Selling Shareholder under the indemnity and contribution provisions of this Section 8 shall be limited to an amount equal to the initial public offering price of the Shares sold by such Selling Shareholder, less the underwriting discount, as set forth on the front cover page of the Prospectus.
Appears in 2 contracts
Sources: Underwriting Agreement (Andersons Inc), Underwriting Agreement (Andersons Inc)
Indemnification and Contribution. (a) The Company will shall indemnify and hold harmless each Underwriter Person that exercises registration rights hereunder and, to the extent applicable, its directors and officers, its partners, its trustees and each Person who controls any of such Persons, each Person who participates as an underwriter in the offering or sale of such securities, and each Person, if any, who controls such underwriter within the meaning of the Securities Act against any losses, claims, damages or liabilitiesdamages, liabilities and expenses, joint or several, to which such Underwriter Person may become subject, be subject under the Securities Act or otherwise, otherwise insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions or proceedings in respect thereof) arise out of or are based upon an (i) any untrue statement or alleged untrue statement of a any material fact contained in any registration statement under which such Eligible Securities were registered under the Registration Statement, the Base ProspectusSecurities Act, any Preliminary Prospectuspreliminary prospectus or final prospectus included therein, the Pricing Prospectus any issuer free-writing prospectus, or the Prospectus, any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actdocument incorporated by reference therein, or arise out of or are based upon the (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and the Company will promptly reimburse each Underwriter such Person for any legal or any other expenses reasonably incurred by such Underwriter Person in connection with investigating or defending any such loss, claim, damage, liability, action or claim as such expenses are incurred; proceeding, provided, howeverthat, that the Company shall not be liable to any Person in any such case to the extent that any such loss, claim, damage damage, liability (or liability action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectussuch registration statement, any Preliminary Prospectussuch preliminary prospectus, the Pricing Prospectus issuer free-writing prospectus or the Prospectusfinal prospectus, or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives Selling Holders or such underwriter expressly for use therein; andin the registration statement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of Holders or any such Person and shall survive the transfer of such securities by the Selling Holders.
(b) Each Selling Holder shall, subject severally and not jointly, indemnify and hold harmless (in the same manner and to subsection (cthe same extent as set forth in Section 8.1(a)) belowthe Company, will reimburse each director of the Company, each officer of the Company who shall sign such registration statement, each Person who participates as an underwriter in the offering or sale of such securities, each Person, if any, who controls the Company or any such underwriter within the meaning of the Securities Act, with respect to any statement in or omission from such registration statement, any preliminary prospectus or final prospectus included therein, any issuer free-writing prospectus, or any amendment or supplement thereto, but only to the extent that such statement or omission was made in reliance upon and in conformity with written information furnished by such Selling Holder to the Company expressly for use in the registration statement. Notwithstanding the provisions of this Section 8.1(b), a Holder shall not be required to indemnify the Company, its directors, officers, underwriters or control persons with respect to any amount in excess of the amount of the total proceeds to such Holder from sales of the Eligible Securities under such registration statement, and no Holder shall be liable under this Section 8.1(b) for any legal statements or omissions of any other expenses reasonably incurred Holder. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company in connection with investigating or defending any such action director, officer or claim as controlling Person and shall survive the transfer of the registered securities by such expenses are incurredSelling Holder and the expiration of this Agreement.
(c) Promptly after receipt by an An indemnified party under subsection (a) or (b) above of hereunder shall give reasonably prompt notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionof any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party (i) shall not relieve the such indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection the indemnity agreement provided in Sections 8.1(a) or (b) above, unless and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any it did not otherwise learn of such action shall be brought against any and the lack of notice by the indemnified party and it shall notify results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the commencement thereofindemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Sections 8.1(a) or (b) above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense of such action or proceeding at such indemnifying party’s own expense with counsel chosen by the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld; except that, the indemnifying party will not settle any such action or proceeding or consent to the entry of a judgment in any such action or proceeding without the written consent of the indemnified party unless (i) as a condition to such settlement, the indemnifying party secures the unconditional release of the indemnified party and (ii) the settlement does not include any statement as to or an admission of fault, culpability or a failure to act, by or on behalf of the indemnified party; and provided, further, that if the indemnified party reasonably determines that a conflict of interest exists where it is advisable for the indemnified party to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall not be entitled to assume such defense and the indemnified party shall be entitled to participate therein and, to separate counsel at the extent that it shall wish, jointly with any other indemnifying party’s expense. If the indemnifying party similarly notified, is not entitled to assume the defense thereofof such action or proceeding as a result of the second proviso to the preceding sentence, with the indemnifying party’s counsel satisfactory shall be entitled to such conduct the indemnifying party’s defense and counsel for the indemnified party (who shall not, except with be entitled to conduct the consent defense of the indemnified party, be it being understood that both such counsel will cooperate with each other to conduct the indemnifying party), and, after notice from defense of such action or proceeding as efficiently as possible. If the indemnifying party to such indemnified party of its election is not so entitled to assume the defense thereofof such action or does not assume such defense, after having received the notice referred to in the first sentence of this paragraph, the indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party. In such event, however, the indemnifying party will not be liable for any settlement effected without the written consent of the indemnifying party. If an indemnifying party is entitled to assume, and assumes, the defense of such action or proceeding in accordance with this paragraph, the indemnifying party shall not be liable to such for any fees and expenses of counsel for the indemnified party under incurred thereafter in connection with such subsection action or proceeding.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Sections 8.1(a) and (b) above is for any legal reason held to be unenforceable by the indemnified party or otherwise unavailable although applicable in accordance with its terms, the Company and the relevant Holder shall contribute to the aggregate losses, liabilities, claims, damages and expenses of other counsel or any other expenses, in each case subsequently the nature contemplated by such indemnity agreement incurred by the Company and the Holder, (i) in such indemnified partyproportion as is appropriate to reflect the relative fault of the Company on the one hand and the Holder on the other, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) statements, omissions or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties violations which resulted in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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 damages, liabilities or liabilities expenses, or (or actions in respect thereofii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative fault of but also the relative benefits received by to the Company on the one hand and the Underwriters of the Designated Securities Holder on the other from the offering of the Designated Securities to which such lossother, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements statements, omissions or omissions violations which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefits to the indemnifying party and indemnified party shall be determined by reference to, among other things, the total proceeds received by the Company on indemnifying party and indemnified party in connection with the one hand and offering to which such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriterslosses, claims, damages, liabilities or expenses relate. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether the action in question, including any untrue or alleged untrue statement of a material fact or the fact, omission or alleged omissions omission to state a material fact or other violation of law, has been made by, or relates to information supplied by by, the Company on indemnifying party or the one hand or such Underwriters on the other indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction. The Company and the Underwriters parties hereto agree that it would not be just and or equitable if contribution pursuant to this subsection (dSection 8.1(d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimimmediately preceding paragraph. Notwithstanding the provisions of this subsection this
Section 8.1 (d), no Underwriter a Holder shall not be required to contribute any amount in excess of the amount by which of the total price at which proceeds received by such Holder from sales of the applicable Designated Eligible Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionHolder under such registration statement. No Notwithstanding the foregoing, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend8.1(d), upon the same terms and conditions, to each officer and director of any Underwriter and to each personPerson, if any, who controls any Underwriter a Holder within the meaning of Section 15 of the ActSecurities Act shall have the same rights to contribution as the Holder, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company, each officer of the Company who signed such registration statement and to each personPerson, if any, who controls the Company within the meaning of Section 15 of the Securities Act shall have the same rights to contribution as the Company.
(e) Indemnification and contribution similar to that specified in the preceding subsections of this Article VIII (with appropriate modifications) shall be given by the Company and the Selling Holders with respect to any required registration or other qualification of such Eligible Securities under any federal or state law or regulation of a governmental authority other than the Securities Act.
Appears in 2 contracts
Sources: Master Contribution and Sale Agreement (Forest City Enterprises Inc), Master Contribution and Sale Agreement (Forest City Enterprises Inc)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the ActRules and Regulations, or arise out of or are based upon (ii) (x) the omission or alleged omission to state therein in the Registration Statement, a material fact required to be stated therein or necessary to make the statements therein not misleading; or (y) the omission or alleged omission to state in any Preliminary Prospectus, andthe Prospectus, subject the Disclosure Package, or the Registration Statement or Prospectus as amended or supplemented or any Issuer Free Writing Prospectus, or any such issuer information, a material fact required to subsection (c) belowbe stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and will reimburse each Underwriter promptly upon demand, but in no event later than 30 days following such demand, for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company shall will not be liable under this Section 7(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter the Representatives, on behalf of Designated Securities through the Representatives Underwriters, expressly for use therein (which information is specified in any thereofSection 12 hereof).
(b) Each Underwriter severally Underwriter, severally, but not jointly, will indemnify and hold harmless the Company against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) (x) the omission or alleged omission to state therein in the Registration Statement, a material fact required to be stated therein or necessary to make the statements therein not misleading; or (y) the omission or alleged omission to state in any Preliminary Prospectus, the Prospectus, the Disclosure Package, or the Registration Statement or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, or any such issuer information, 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, and will reimburse the Company promptly upon demand, but in no event later than 30 days following such demand, for any legal or other expenses reasonably incurred by the Company in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Representatives, on behalf of such Underwriter through the Representatives Underwriter, expressly for use therein; and, subject to subsection therein (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company which information is specified in connection with investigating or defending any such action or claim as such expenses are incurredSection 12 hereof).
(c) Promptly after receipt by an any indemnified party under subsection (aSection 7(a) or (b7(b) above of notice of any claim or the commencement of any action, such the indemnified party shallwill, if a claim in respect thereof is to be made against the one or more indemnifying party parties under such subsection, notify the each indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the each such indemnifying party shall will not relieve it from any liability which it may have under this Section 7 except to the indemnifying party extent it has been prejudiced in any material respect by such failure or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case If any such claim or action shall will be brought against any indemnified party party, and it shall notify the notifies each indemnifying party of the commencement thereof, the each such indemnifying party shall will be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any each other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the each indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the each such indemnifying party shall will not be liable to such the indemnified party under such subsection Section 7(a) or 7(b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying , except that the indemnified party under subsection (a) or (b) above shall only will have the right to employ counsel to represent the indemnified party who may be liable for the legal expenses subject to liability arising out of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the indemnified party against the indemnifying party under Section 7(a) or (b), as applicable if (i) the employment thereof has been specifically authorized by the indemnifying party in writing, (ii) the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to the indemnified party which are different from or additional to those available to the indemnifying party and in the judgment of such counsel it is advisable to employ separate counsel, (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party, in which event the fees and expenses of such separate counsel will be paid by the indemnifying party and (iv) the named parties in any such proceeding (including any impleaded parties) including both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the indemnifying party shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties, and that all such fees and expenses shall be reimbursed promptly, but in no event later than 30 days, following demand from the indemnified parties for reimbursement of such fees and expenses as they are incurred; provided, however, that upon a final determination by a court of competent jurisdiction that any indemnified party was not entitled to payment of such expenses by the indemnifying party pursuant to this subsection (c) (including because such party is not entitled to indemnification with respect to such matter pursuant to this Section 7), such indemnified party shall promptly reimburse such payment to the indemnifying party. No indemnifying party will (i) without the prior written consent of the indemnified parties (which consent will not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (A) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (B) does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent will not be unreasonably withheld), but if settled with the consent of each indemnifying party or if there be a final judgment for the plaintiff in any such action, each such indemnifying partyparty agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 7(a) or (b7(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in Section 7(a) or 7(b) above (or actions in respect thereofi) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall hand will be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative Relative fault shall will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (dSection 7(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (dSection 7(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 the first sentence of this subsection (dSection 7(d) shall will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this Section 7(d). Notwithstanding the provisions of this subsection (dSection 7(d), no Underwriter shall will be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public investors were offered to the public investors exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 7(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 7(c) above).
(e) The obligations of the Company under this Section 9 shall 7 will be in addition to any liability which that the Company may otherwise have have, and shall will extend, upon the same terms and conditionsconditions set forth in this Section 7, to each officer the respective affiliates, officers and director directors of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 shall 7 will be in addition to any liability which that the respective Underwriters may otherwise have have, and shall will extend, upon the same terms and conditions, to each officer and director of the Company, to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Arcadia Financial and the Company will will, jointly and severally, indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any part of the Registration StatementStatement when such part became effective, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, in any amendment or supplement to any thereofthereto, or in the Prospectus, or any Issuer Free Writing amendment or supplement thereto, any Preliminary Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the ActTerm Sheet, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter it in connection with investigating or defending any against such loss, claim, damage, liability or action or claim as such expenses are incurred; provided, however, that Arcadia Financial and the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to Arcadia Financial or the Company by the Representatives, or by any Underwriter through the Representatives, specifically for use therein; provided further, that neither Arcadia Financial nor the Company shall be liable to any Underwriter under the indemnity agreement in this subsection (a) with respect to any Preliminary Prospectus to the extent that any loss, claim, damage or liability of such Underwriter results from the fact that such Underwriter sold Designated Securities through to a person as to whom it is established that there was not sent or given, at or prior to written confirmation of such sale, a copy of the Representatives expressly for use Prospectus (excluding documents incorporated by reference) or of the Prospectus as then amended or supplemented (excluding documents incorporated by reference) in any thereofcase where such delivery is required by the Act if the Company notified you in writing in accordance with Section 4(e) hereof and previously furnished copies of the Prospectus (excluding documents incorporated by reference) or of the Prospectus as then amended or supplemented (excluding documents incorporated by reference in the quantity requested in accordance with Section 4(e) hereof to such Underwriter and the loss, claim, damage or liability of such Underwriter results from an untrue statement or omission of a material fact contained in the Preliminary Prospectus and corrected in the Prospectus or the Prospectus as then amended or supplemented.
(b) Each Underwriter will severally will and not jointly indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any part of the Registration StatementStatement when such part became effective, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, in any amendment or supplement to thereto, or in the Prospectus or any thereofamendment or supplement thereto, or any Issuer Free Writing Preliminary Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by the Representatives, or by such Underwriter through the Representatives expressly Representatives, specifically for use thereinin the preparation thereof; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending against any such loss, claim, damage, liability or action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party or otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein in, and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The In any such action, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party under subsection and the indemnified party shall have mutually agreed to the contrary, (aii) the indemnified party has reasonably concluded (based upon advice of counsel to the indemnified party) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (iii) a conflict or potential conflict exists (based upon advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or (biv) above the indemnifying party has elected to assume the defense of such proceeding but has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified person. It is understood that the indemnifying party shall only not, with respect to any action brought against any indemnified party, be liable for the legal fees and expenses of more than one counsel firm (in addition to any local counsel) for all indemnified parties in each jurisdiction in which parties, and that all such fees and expenses shall be reimbursed within a reasonable period of time as they are incurred. Unless it shall assume the defense of any claim or action is brought. An indemnified proceeding, an indemnifying party under subsection (a) or (b) above shall not enter into a be liable for any settlement of any litigation in respect of which proceeding effected without its written consent, but if settled with such consent or if there be a claim is to be made against final judgment for the plaintiff, the indemnifying party shall indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. If any indemnifying party assumes the defense of a proceeding, it shall not settle, compromise or consent to the entry of any judgment with respect thereto if indemnification or contribution could be sought under such subsection this Section 6 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement is effected with the settlement, compromise or consent (i) includes an unconditional release of the indemnifying each indemnified party from all liability arising out of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 6 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in subsection (a) or actions (b) above, (i) in respect thereofsuch proportion as is appropriate to reflect the relative benefits received by Arcadia Financial and the Company on the one hand and the Underwriters on the other from the offering of the Designated Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by referred to in clause (i) above but also the relative fault of Arcadia Financial and the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)liabilities, as well as any other relevant equitable considerations. The relative benefits received by Arcadia Financial and the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts compensation or profit (before deducting expenses) received or realized by the Underwriters from the purchase and commissions received by such Underwritersresale, or underwriting, of the Designated Securities. 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 omissions omission to state a material fact relates to information supplied by Arcadia Financial or the Company on or the one hand or such Underwriters on the other and the parties’ ' relative intent, knowledge, access to information and opportunity opportunity, and actions and inaction to correct or prevent such untrue statement or omission. The Arcadia Financial and the Company on the one hand and the Underwriters on the other agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were to be determined by pro rata allocation (even if the Underwriters 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 the first sentence of this subsection (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 the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim (which shall be limited as provided in subsection (c) above if the indemnifying party has assumed the defense of any such action or claimin accordance with the provisions thereof) which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are shall be several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of Arcadia Financial and the Company under this Section 9 6 shall be in addition to any liability which Arcadia Financial and the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act, ; and the obligations of the Underwriters under this Section 9 6 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Act or the Exchange Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will and Newcourt shall, jointly and severally, indemnify and hold harmless each Underwriter harmless from and against any and all losses, claims, damages or damages, and liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or damages, liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Statement or the Prospectus, or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating investigated or defending any such action or claim as such expenses are incurred; provided, however, that the Company and Newcourt shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Provided Information in the Registration Statement, Statement or the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereofsupplement.
(b) Each Underwriter severally will indemnify and hold harmless the Company and Newcourt against any losses, claims, damages or liabilities to which the Company or Newcourt may become subject, under the Act or otherwise, insofar as such losses, claims, damages or damages, liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Statement or the Prospectus, or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Provided Information in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Statement or Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon supplement; and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company and Newcourt for any legal or other expenses reasonably incurred by the Company and Newcourt in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) The Company, Newcourt and each Underwriter agree that upon the commencement of any action against it, its directors, its officers who sign the Registration Statement, or (b) above any person controlling it as aforesaid in respect of which indemnity may be sought on account of any indemnity agreement contained herein, it will promptly give written notice of the commencement of any actionthereof to the party or parties against whom indemnity shall be sought, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the such indemnifying party or parties of any such action shall not relieve the such indemnifying party or parties from any liability which it or they may have to any the indemnified party or parties otherwise than under on account of such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifyindemnity agreement. In case such notice of any such action shall be brought against any indemnified party and it shall notify the so given, such indemnifying party of the commencement thereof, the indemnifying party or parties shall be entitled to participate therein andat its or their own expense in the defense of such action, to the extent that or, if it shall wish, jointly with any other indemnifying party similarly notifiedor they so elect, to assume the defense thereofof such action, with and in the latter event such defense shall be conducted by counsel chosen by such indemnifying party or parties and satisfactory to such the indemnified party (or parties who shall notbe defendant or defendants in such action, except with and such defendant or defendants shall bear the consent fees and expenses of the indemnified party, be any additional counsel to the indemnifying party), and, after notice from retained by them; but if the indemnifying party to such indemnified party of its election so or parties shall not elect to assume the defense thereofof such action, such indemnifying party or parties will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them. In the event that the parties to any such action (including impleaded parties) include the Company, Newcourt and one or more Underwriters and either (i) the indemnifying party or parties and indemnified party or parties mutually agree or (ii) representation of both the indemnifying party or parties and the indemnified party or parties by the same counsel is inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them, then the indemnifying party or parties shall not have the right to assume the defense of such action on behalf of such indemnified party or parties and will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by them and satisfactory to the indemnifying party or parties, it being understood that the indemnifying party or parties shall not, in connection with any one action or separate but similar or related actions arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to local counsel) for all such indemnified parties, which shall be designated in writing by the Representative in the case of an action in which one or more Underwriters or controlling persons are indemnified parties and by the Company or Newcourt in the case of an action in which the Company or Newcourt or any of their respective directors, officers or controlling persons are indemnified parties. The indemnifying party or parties shall not be liable under this Agreement with respect to such any settlement made by any indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred parties without prior written consent by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under or parties to such subsection unless such settlement is effected with the consent of the indemnifying partysettlement.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection subparagraph (a) or (b) above of this Section 11 is unavailable to an indemnified party in respect of any losses, claims, damages damages, or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party under such paragraph, 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company and Newcourt on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Notes. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subparagraph (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and Newcourt on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and Newcourt on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes purchased under this Agreement (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwritersthe Underwriters with respect to the Notes purchased under this Agreement, in each case as set forth the in table on the cover page of the Prospectus. The relative fault of the Company and Newcourt and of the Underwriters 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 omissions omission to state a material fact relates to information supplied by the Company or Newcourt on the one hand or such by the Underwriters on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, Newcourt and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection subparagraph (d) were determined by pro rata allocation (even if the Underwriters 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 subsection subparagraph (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 subsection subparagraph (d) shall be deemed to include include, subject to the limitations set forth above in this Section 11, 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 subsection subparagraph (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations of the Underwriters of Designated Securities in this subsection subparagraph (d) to contribute are several in proportion to their respective underwriting obligations with respect as set forth in Schedule I hereto (including an increase pursuant to such securities Section 6) and not joint.
(e) The obligations of the Company and Newcourt under this Section 9 11 shall be in addition to any liability which the Company and Newcourt may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters underwriters under this Section 9 11 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company or Newcourt and to each person, if any, who controls the Company or Newcourt within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The In the event of a registration of any Warrant Shares under the Act pursuant to this Section 12, the Company will indemnify and hold harmless harmless, to the fullest extent permitted by law, each Underwriter Holder selling Warrant Shares thereunder, each underwriter thereunder, and each other person, if any, who controls such selling Holder of Warrant Shares or underwriter within the meaning of the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against any losses, claims, damages or liabilitiesdamages, liabilities and expenses, joint or for several, to which such Underwriter selling Holder, underwriter or controlling person may become subject, subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement under which such Warrant Shares were registered under the Registration Statement, the Base ProspectusAct pursuant to Section 12, any Preliminary Prospectuspreliminary prospectus or final prospectus contained therein, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will pay or reimburse each Underwriter such selling Holder, each such underwriter and each such controlling person for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall (i) will not be liable in any such case if and to the extent that (A) any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in the Registration Statement, the Base Prospectusconformity with information furnished by any such selling Holder, any Preliminary Prospectussuch underwriter or any such controlling person, as the Pricing Prospectus or the Prospectuscase may be, any in writing specifically for use in such registration statement, prospectus, amendment or supplement or (B) in respect to any thereofsuch statement, alleged statement omission or any Issuer Free Writing Prospectusalleged omission with respect to which such loss, claim, damage or liability directly relates, the final prospectus for such registration statement corrected in reliance upon all material respects such statement alleged statement, omission or alleged omission and a copy of such final prospectus was not sent or given by or on behalf of such Holder (or otherwise delivered in conformity accordance with written information furnished applicable law or regulation) at or prior to the Company by confirmation of the sale of Warrant Shares of such Holder and (ii) will not be liable for amounts paid in settlement of any Underwriter such loss, claim, damage, liability or action if such settlement is effected without the consent of Designated Securities through the Representatives expressly for use in any thereofCompany, such consent not to be unreasonably withheld or delayed.
(ba) Each Underwriter In the event of a registration of any Warrant Shares under the Act pursuant to this Section 12, each Holder selling Warrant Shares thereunder, severally and not jointly, will indemnify and hold harmless the Company, each person, if any, who controls the Company within the meaning of the Act, each officer of the Company who signs the registration statement, each director of the Company, each underwriter and each person who controls any underwriter within the meaning of the Act, against any all losses, claims, damages or liabilities liabilities, joint or several, to which the Company or such officer, director, underwriter or controlling person may become subject, subject under the Act or otherwise, insofar as but only to the extent that such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information pertaining to such selling Holder, as such, furnished in writing to the Company by such Underwriter through the Representatives expressly selling Holder specifically for use in such registration statement under which such Warrant Shares was registered under the Act pursuant to this Section 12, any preliminary prospectus or final prospectus contained therein; and, subject to subsection (c) belowor any amendment or supplement thereof, and will pay or reimburse the Company and each such officer, director, underwriter and controlling person for any legal or other expenses reasonably incurred by the Company them in connection with investigating or defending any such loss, claim, damage liability or action or claim as (ii) any statement, alleged statement, omission or alleged omission made by the Company with respect to which such expenses are incurredloss, claim, damage or liability directly relates, if the final prospectus for such registration statement corrected in all material respects such statement, alleged statement, omission or alleged omission and a copy of such final prospectus was not sent or given by or on behalf of such Holder (or otherwise delivered in accordance with applicable law or regulation) at or prior to the confirmation of the sale of Warrant Shares of such Holder, provided, however, that (A) the liability of each selling Holder hereunder shall be limited to the proportion of any such loss, claim, damage, liability or expense which is equal to the proportion that the public offering price of the Warrant Shares sold by such selling Holder under such registration statement bears to the total public offering price of all securities sold thereunder, but not in any event to exceed the net proceeds received by such selling Holder from the sale of Warrant Shares covered by such registration statement and (B) no selling Holder shall be liable for amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of such selling Holder, such consent not to be unreasonably withheld or delayed.
(ca) Promptly after receipt by an indemnified party under subsection (a) or (b) above hereunder of written notice of any claim or the commencement of any actionaction or proceeding, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionhereunder, notify the indemnifying party in writing of the commencement thereof; , but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any such indemnified party otherwise than under such subsection and only party, except to the extent such the indemnifying party has been is materially prejudiced by such omission so to notifyomission. In case any such action shall be brought against any indemnified party and it the indemnified party shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein in and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume and undertake the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection this Section 12.6(c) for any legal or other professional expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof. No indemnifying party, in the defense of any such claim or litigation against an indemnified party, shall consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof other than reasonable costs the giving by the claimant or plaintiff to such indemnified party of investigationa release from all liability in respect of such claim or litigation, unless such indemnified party shall otherwise consent in writing. The An indemnifying party under subsection (a) or (b) above who elects to assume the defense of a claim shall only not be liable for obligated to pay the legal fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim (in addition to any local counsel), unless any indemnified party reasonably concludes that there may be legal defenses available to such indemnified party with respect to such claim which are different from or additional to those available to any other of such indemnified parties in each jurisdiction or that a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which any claim event the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel or action is brought. An indemnified party under subsection counsels.
(a) In order to provide for just and equitable contribution in any case in which either (i) any Holder exercising registration rights under this Section 12, or any controlling person of any such Holder, makes a claim for indemnification pursuant to this Section 12.6, but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and following the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 12.6 provides for indemnification in such case or (bii) above shall not enter into a settlement contribution under the Act may be required on the part of any litigation such Holder or any such controlling person in respect of circumstances for which a claim indemnification is to be made against the indemnifying party provided under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable 12.6, then, and in each such case, the Company and such Holder shall contribute to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any the aggregate losses, claims, damages or liabilities to which they may be subject (or actions 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 thereofafter contribution from others) in such proportion as is appropriate to reflect not only both the relative benefits benefit received by the Company on the one hand such Holder and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters such Holder; provided, however, that, in any such case, (A) no Holder will be required to contribute any amount in excess of the Designated Securities on public offering price of all such Warrant Shares offered by it pursuant to such registration statement and (B) no person or entity guilty of fraudulent misrepresentation (within, the other in connection with meaning of Section 11(f) of the statements Act) will be entitled to contribution from any person or omissions which resulted in entity who was not guilty of such lossesfraudulent misrepresentation. For purposes of the preceding sentence, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The the relative benefits benefit received by the Company on the one hand and such Underwriters on the other Holder of Warrant Shares shall be deemed to be in the same proportion as the total net proceeds from such public offering (before deducting expenses) received price of its Warrant Shares offered by the Company bear registration statement bears to the total underwriting discounts and commissions received public offering price of all securities offered by such Underwriters. The registration statement; and the relative fault of the Company and such Holder 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 omissions to state of a material fact relates to information supplied by the Company on or by the one hand or such Underwriters on the other Holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter the Placement Agent, its affiliates and any person acting on its behalf against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) thereof (the “Covered Claims”), to which the Placement Agent may become subject, insofar as such Covered Claims arise out of ot or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofConfidential Memorandum, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d(ii) under the Act, or arise out of or are based upon the omission or alleged omission to state therein in the Confidential Memorandum a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, subject to subsection (c) below, misleading . The Company will reimburse each Underwriter the Placement Agent for any legal or other expenses reasonably incurred by such Underwriter the Placement Agent in connection with investigating or defending any such action or claim as such expenses are incurred; providedCovered Claims . Notwithstanding the foregoing, however, that the Company shall not be liable to or indemnify or reimburse the Placement Agent in any such case to the extent that any such loss, claim, damage or liability arises Covered Claims arise out of or is are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, Confidential Memorandum in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives Placement Agent expressly for use therein . The Company acknowledges and agrees that as of the date hereof the Placement Agent has not provided any information in any thereof.
connection with the Confidential Memorandum . (b) Each Underwriter severally The Placement Agent will indemnify and hold harmless the Company Company, its affiliates and any person acting on its behalf against any losses, claims, damages or liabilities Covered Claims to which the Company may become subject, under the Act or otherwise, subject insofar as such losses, claims, damages or liabilities (or actions in respect thereof) Covered Claims arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofConfidential Memorandum, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Confidential Memorandum a material fact required to be stated therein or necessary to make malie the statements therein therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing ProspectusConfidential Memorandum, in reliance upon and in conformity with the written information furnished to the Company by such Underwriter through the Representatives expressly for use thereinPlacement Agent referred to in subsectlon (a) above ; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred lncurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredCovered Claims .
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Subject to the limitations in this paragraph below, the Company will agrees to indemnify and hold harmless you and each other Underwriter, the directors, officers, employees, agents and partners of each Underwriter, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages or liabilitiesdamages, joint or severalliabilities and expenses, to which such Underwriter may become subjectincluding reasonable costs of investigation and attorneys’ fees and expenses (collectively, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof“Damages”) arise arising out of or are based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, in the Registration Statement, the Base ProspectusTime of Sale Information, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or the Prospectus or in any “issuer information” filed amendment or required to be filed pursuant to Rule 433(d) under the Actsupplement thereto, or arise out of or are based upon the any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case except to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) Damages arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission that has been made therein or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, omitted therefrom in reliance upon and in conformity with written the information furnished in writing to the Company by such or on behalf of any Underwriter through the Representatives you, expressly for use therein; and, subject to subsection in connection therewith or (cii) below, will reimburse any inaccuracy in or breach of the representations and warranties of the Company for contained herein or any legal or other expenses reasonably incurred by failure of the Company to perform its obligations hereunder or under law. This indemnification shall be in connection with investigating or defending addition to any such liability that the Company may otherwise have. If any action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party Underwriter or any person controlling any Underwriter in respect of which indemnity may be sought against the Company, such Underwriter or such controlling person shall promptly notify in writing the party(s) against whom indemnification is being sought (the “indemnifying party” or “indemnifying parties”), and it such indemnifying party(s) shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with including the employment of counsel satisfactory reasonably acceptable to such indemnified party Underwriter or such controlling person and the payment of all reasonable fees of and expenses incurred by such counsel. Such Underwriter or any such controlling person shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person, unless (who shall not, except with the consent of the indemnified party, be counsel to i) the indemnifying party)party(s) has (have) agreed in writing to pay such fees and expenses, and, after notice from (ii) the indemnifying party to such indemnified party of its election so party(s) has (have) failed to assume the defense thereof, and employ counsel reasonably acceptable to the Underwriter or such controlling person or (iii) the named parties to any such action (including any impleaded parties) include both such Underwriter or such controlling person and the indemnifying party(s), and such Underwriter or such controlling person shall have been advised by its counsel that one or more legal defenses may be available to the Underwriter that may not be available to the Company, or that representation of such indemnified party and any indemnifying party(s) by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the indemnifying party(s) shall not have the right to assume the defense of such action on behalf of such Underwriter or such controlling person (but the Company shall not be liable to such indemnified party under such subsection for any legal the fees and expenses of other more than one counsel or any other expenses, in each case subsequently incurred by for the Underwriters and such indemnified party, in connection with the defense thereof other than reasonable costs of investigationcontrolling persons)). The indemnifying party under subsection (aparty(s) or (b) above shall only not be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation such action effected without its (their several) written consent, but if settled with such written consent, or if there be a final judgment for the plaintiff in any such action, the indemnifying party(s) agree(s) to indemnify and hold harmless any Underwriter and any such controlling person from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment, but in the case of a judgment only to the extent stated in the first and second paragraph of this Section 8. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and any person who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent as the foregoing several indemnity from the Company to each Underwriter, but only with respect to information furnished in writing by or on behalf of such Underwriter through you expressly for use in the Registration Statement, the Prospectus, the Time of Sale Information, any Issuer Free Writing Prospectus or any Preliminary Prospectus, or any amendment or supplement thereto. If any action or claim shall be brought or asserted against the Company, any of its directors, any of its officers or any such controlling person based on the Registration Statement, the Prospectus, the Time of Sale Information or any Preliminary Prospectus, or any amendment or supplement thereto, and in respect of which a claim is indemnity may be sought against any Underwriter pursuant to this paragraph, such Underwriter shall have the rights and duties given to the Company by the immediately preceding paragraph (except that if the Company shall have assumed the defense thereof such Underwriter shall not be made against required to do so, but may employ separate counsel therein and participate in the indemnifying party under defense thereof, but the fees and expenses of such subsection unless counsel shall be at such settlement is effected with Underwriter’s expense), and the Company, its directors, any such officers and any such controlling persons, shall have the rights and duties given to the Underwriters by the immediately preceding paragraph. In any event, the Company will not, without the prior written consent of the indemnifying party.
Representative, settle or compromise or consent to the entry of any judgment in any proceeding or threatened claim, action, suit or proceeding in respect of which the indemnification may be sought hereunder (dwhether or not the Representative or any person who controls the Representative within the meaning of Section 15 of the Act or Section 20 of the Exchange Act is a party to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of all Underwriters and such controlling persons from all liability arising out of such claim, action, suit or proceeding. If the indemnification provided for in this Section 9 8 is unavailable to or insufficient for any reason whatsoever to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) Damages referred to thereinherein, then each an indemnifying party party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such lossesDamages (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand, claimsand the Underwriters on the other hand, damages from the offering and sale of the Shares or liabilities (or actions in respect thereofii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative and several fault of the Company on the one hand hand, and the Underwriters of the Designated Securities on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Damages as well as any other relevant equitable considerations. The relative and several benefits received by the Company on the one hand hand, and such the Underwriters on the other hand, shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus; provided that, in the event that the Underwriters shall have purchased any Additional Shares hereunder, any determination of the relative benefits received by the Company or the Underwriters from the offering of the Shares shall include the net proceeds (before deducting expenses) received by the Company and the underwriting discounts and commissions received by the Underwriters, from the sale of such UnderwritersAdditional Shares, in each case computed on the basis of the respective amounts set forth in the notes to the table on the cover page of the Prospectus. The relative fault of the Company on the one hand, and the Underwriters on the other hand, 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand hand, or such by the Underwriters on the other hand and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were Section 8 was determined by a pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this subsection (d)the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) Damages referred to above in this subsection (d) the immediately preceding paragraph shall be deemed to include include, subject to the limitations set forth above, 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 subsection (d)Section 8, no Underwriter shall be required to contribute any amount in excess of the amount of the underwriting commissions received by which such Underwriter in connection with the total price at which the applicable Designated Securities Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionpublic. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute pursuant to this Section 8 are several in proportion to the respective numbers of Firm Shares set forth opposite their respective underwriting obligations with respect to names in Schedule I hereto (or such securities numbers of Firm Shares increased as set forth in Section 10 hereof) and not joint.
(e) . The obligations indemnity, contribution and reimbursement agreements contained in this Section 8 and the representations and warranties of the Company under set forth in this Section 9 Agreement shall be remain operative and in addition to full force and effect, regardless of (i) any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director investigation made by or on behalf of any Underwriter or any person controlling any Underwriter, the Company, its directors or officers or any person controlling the Company, (ii) acceptance of any Shares and payment therefor hereunder and (iii) any termination of this Agreement. A successor to each person, if any, who controls any Underwriter within or any person controlling any Underwriter, or to the meaning Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the Actindemnity, contribution and the obligations of the Underwriters under reimbursement agreements contained in this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act8.
Appears in 1 contract
Sources: Underwriting Agreement (Pinnacle Financial Partners Inc)
Indemnification and Contribution. (a) The Company and the Selling Stockholder jointly and severally will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, subject under the Act 1933 Act, specifically including but not limited to losses, claims, damages or otherwiseliabilities related to negligence on the part of any Underwriter, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any breach of any warranty or covenant of the Company herein contained or any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or in any Issuer Free Writing Prospectus "blue sky" application or other document executed by the Company or based upon any “issuer information” information furnished in writing by the Company, filed in any jurisdiction in order to qualify any or required to be filed pursuant to Rule 433(d) all of the Shares under the Actsecurities laws thereof ("Blue Sky Application"), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, ; and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; providedPROVIDED, howeverHOWEVER, that the Company and the Selling Stockholder shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any such Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any or such amendment or supplement to any thereofsupplement, or any Issuer Free Writing Prospectus, Blue Sky Application in reliance upon and in conformity with written information furnished to the Company by you or by any Underwriter of Designated Securities through the Representatives you expressly for use therein; PROVIDED, FURTHER, that the Company and the Selling Stockholder will not be liable for any such losses, claims, damages, or liabilities arising from the sale of the Shares to any person if a copy of the Prospectus (as first filed pursuant to Rule 424(b) ) or the Prospectus as amended or supplemented by all amendments or supplements thereto which has been furnished to the Underwriters shall not have been sent, mailed or given to such person, at or prior to the written confirmation of the sale of such Shares to such person, but only if and to the extent that such Prospectus, if so sent or delivered, would have cured the defect giving rise to such losses, claims, damages or liabilities. In addition to their other obligations under this Section 9(a), the Company and the Selling Stockholder agree that, as an interim measure during the pendency of any such claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(a), they will reimburse the Underwriters on a monthly basis for all reasonable legal and other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company's and the Selling Stockholder's obligation to reimburse the Underwriters for such expense and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. Any such interim reimbursement payments that are not made to an Underwriter within 30 days of a request for reimbursement shall bear interest at the prime rate (or reference rate or other commercial lending rate for borrowers of the highest credit standing) announced from time to time by First Tennessee Bank National Association (the "Prime Rate") from the date of such request. This indemnity agreement shall be in addition to any liabilities that the Company may otherwise have. For purposes of this Section 9, the information set forth in the last paragraph on the front cover page (insofar as such information related to the Underwriters) and under "Underwriting" in any thereofPreliminary Prospectus and in the Prospectus constitutes the only information furnished by the Underwriters to the Company for inclusion in any Preliminary Prospectus, the Prospectus or the Registration Statement. Notwithstanding anything to the contrary herein, the indemnity by the Selling Stockholder shall in no event exceed the net proceeds received by the Selling Stockholder in this Offering.
(b) Each Underwriter Underwriter, severally but not jointly, will indemnify and hold harmless the Company and the Selling Stockholder against any losses, claims, damages or liabilities to which the Company or the Selling Stockholder may become subject, under the 1933 Act specifically including but not limited to losses, claims, damages or otherwiseliabilities related to negligence on the part of the Company and the Selling Stockholder, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any breach of any warranty or covenant by you herein contained or any untrue statement or alleged untrue statement of a any material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, Blue Sky Application or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, such Preliminary Prospectus or the Base Prospectus, or such amendment or supplement, or any Blue Sky Application, in reliance upon and in conformity with information furnished to the Company by such Underwriter expressly for use therein; and will reimburse the Company and the Selling Stockholder for any legal or other expenses reasonably incurred by the Company or the Selling Stockholder in connection with investigating or defending any such loss, claim, damage, liability or action. In addition to their other obligations under this Section 9(b), the Underwriters agree that, as an interim measure during the pendency of any such claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(b) , they will reimburse the Company and the Selling Stockholder on a monthly basis for all reasonable legal and other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of their obligation to reimburse the Company or the Selling Stockholder for such expense and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. Any such interim reimbursement payments that are not made to the Company or the Selling Stockholder within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement shall be in addition to any liabilities which the Underwriters may otherwise have. The indemnity agreement in this Section 9(b) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each officer and director of the Company and each person, if any, who controls the Company within the meaning of the 1933 Act to the same extent as such agreement applies to the Company.
(c) The Selling Stockholder shall indemnify and hold harmless the Company and the Underwriters against any losses, claims, damages or liabilities to which the Company or the Underwriters may become subject, under the 1933 Act specifically including but not limited to losses, claims, damages or liabilities related to negligence on the part of the Company or the Underwriters, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any breach of any warranty or covenant by the Selling Stockholder herein contained or any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, or any amendment or supplement thereto, or any Blue Sky Application or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, such Preliminary Prospectus or the Prospectus, any or such amendment or supplement to any thereofsupplement, or any Issuer Free Writing ProspectusBlue Sky Application, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives Selling Stockholder expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company and the Underwriters for any legal or other expenses reasonably incurred by the Company or the Underwriters in connection with investigating or defending any such action loss, claim, damage, liability or claim action. In addition to his other obligations under this Section 9(c) , the Selling Stockholder agree that, as an interim measure during the pendency of any such claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 9(c), he will reimburse the Company and the Underwriters on a monthly basis for all reasonable legal and other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of his obligation to reimburse the Company or the Underwriters for such expense and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. Any such interim reimbursement payments that are not made to the Company or the Underwriters within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement shall be in addition to any liabilities which the Selling Stockholder may otherwise have. The indemnity agreement in this Section 9(c) shall extend upon the same terms and conditions to, and shall inure to the benefit of, each officer and director of the Company and each person, if any, who controls the Company within the meaning of the 1933 Act to the same extent as such expenses are incurredagreement applies to the Company.
(cd) Promptly Within ten days after receipt by an indemnified party under subsection (a), (b) or (bc) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; no indemnification provided in this Section 9(a), 9(b) or 9(c) shall be available to any party who shall fail to give notice as provided in this Section 9(d) if the party to whom notice was not given was unaware of the proceeding to which such notice would have related and was prejudiced by the failure to give such notice, but the omission so to notify the indemnifying party shall will not relieve the indemnifying party from any liability which that it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 9. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein therein, and, to the extent that it shall wish, jointly with any other indemnifying party party, similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, thereof the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (d) shall be deemed to include any legal or other expenses reasonably subsequently incurred by such indemnified party in connection with investigating or defending the defense thereof. The indemnified party shall have the right to employ its own counsel in any such action or claim. Notwithstanding action, but the provisions fees and expenses of this subsection (d), no Underwriter such counsel shall be required to contribute any amount at the expense of such indemnified party unless (i) the employment of counsel by such indemnified party has been authorized by the indemnifying party, (ii) the indemnified party shall have been advised by such counsel that there may be a conflict of interest between the indemnifying party and the indemnified party in excess the conduct of the amount defense of such action (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party) or (iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action, in any of which events such fees and expenses shall be borne by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount indemnifying party. The indemnifying party shall not be liable for any settlement of any damages which proceeding effected without its written consent, but if settled with such Underwriter has otherwise been required consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to pay indemnify the indemnified party from and against any loss or liability by reason of such untrue settlement or alleged untrue statement judgment.
(e) It is agreed that any controversy arising out of the operation of the interim reimbursement arrangements set forth in Section 9(a), 9(b) and 9(c) hereof, including the amounts of any requested reimbursement payments, the method of determining such amounts and the basis on which such amounts shall be apportioned among the indemnifying parties, shall be settled by arbitration conducted pursuant to the Code of Arbitration Procedure of the NASD. Any such arbitration must be commenced by service of a written demand for arbitration or omission a written notice of intention to arbitrate, therein electing the arbitration tribunal. In the event the party demanding arbitration does not make such designation of an arbitration tribunal in such demand or alleged omissionnotice, then the party responding to said demand or notice is authorized to do so. No Any such arbitration will be limited to the operation of the interim reimbursement provisions contained in Sections 9(a), 9(b) and 9(c) hereof and will not resolve the ultimate propriety or enforceability of the obligation to indemnify for expenses that is created by the provisions of Sections 9(a), 9(b) and 9(c) .
(f) In order to provide for just and equitable contribution in circumstances under which the indemnity provided for in this Section 9 is for any reason 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 the denial of the last right of appeal) to be unenforceable by the indemnified parties although applicable in accordance with its terms, the Company, the Selling Stockholder and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity incurred by the Company, the Selling Stockholder and one or more of the Underwriters, as incurred, in such proportions that (i) the Underwriters are responsible pro rata for that portion represented by the underwriting discount appearing on the cover page of the Prospectus bears to the public offering price (before deducting expenses) appearing thereon, and (ii) the Company and the Selling Stockholder are responsible for the balance; PROVIDED, HOWEVER, that no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of ; PROVIDED, FURTHER, that if the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and allocation provided above is not joint.
(e) The obligations of permitted by applicable law, the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extendCompany, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.the
Appears in 1 contract
Indemnification and Contribution. (a) The In the event of any ---------------------------------- registration under the Securities Act pursuant to this Article VII of any Registrable Securities, the Company will indemnify and hold harmless each Underwriter the Holder thereof against any losses, claims, damages damages, liabilities or liabilitiesexpenses, joint or several, to which such Underwriter Holder may become subject, ; under the Securities Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a any material fact contained contained, on the effective date thereof, in any registration statement under which such securities were registered under the Registration Statement, the Base ProspectusSecurities Act, any Preliminary Prospectuspreliminary prospectus or final prospectus contained therein, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter such Holder for any legal or any other expenses reasonably incurred by such Underwriter Holder in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage damage, liability or liability expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statementsuch registration statement, the Base Prospectuspreliminary prospectus, any Preliminary Prospectus, the Pricing Prospectus prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter such Holder or an underwriter on behalf of Designated Securities through the Representatives such Holder expressly for use in therein; and provided further that the foregoing indemnity agreement with respect to any thereof.prospectus shall not inure to the benefit of the Holder if it is conclusively determined by a court of competent jurisdiction not subject to appeal that a copy of a prospectus was not sent or given by or on behalf of the Holder to the purchaser of the Common Stock who has asserted a claim, if required by law to have been so delivered, at or prior to the written confirmation of the sale of Common Stock to such person, and if a prospectus would have cured the defect giving rise to such loss, claim, damage or liability;
(b) Each Underwriter severally will Holder of Registrable Securities, by acceptance of the registration provisions provided herein, agrees to indemnify and hold harmless the Company against any losses, claims, damages damages, liabilities or liabilities expenses, joint or several, to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement under which securities were registered under the Registration Statement, Securities Act at the Base Prospectusrequest of such Holder, any Preliminary Prospectuspreliminary prospectus or final prospectus contained therein, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statementany such registration statement, the Base Prospectuspreliminary prospectus, any Preliminary Prospectus, the Pricing Prospectus prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives Holder expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the an indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only except to the extent such indemnifying party it has been materially prejudiced by such omission so to notifyfailure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who which shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 7.06 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (bc) above in respect of any losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) referred to thereintherein or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities relevant Holder on the other in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters the relevant 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 Underwriters each Holder registering securities under this Article VII agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter Holder registering securities under this Article VII shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten securities registered and sold by it and distributed to the public were offered to the public such Holder exceeds the amount of any damages which such Underwriter Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 7.06 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director person (including each underwriter) who participated in the offering of any Underwriter the registered securities and to each person, if any, who controls any Underwriter Holder registering securities under this Article VII or any such person (including each such underwriter) within the meaning of Section 15 of the Securities Act, ; and the obligations of the Underwriters under this Section 9 7.06 of any Holder registering securities under this Article VII shall be in addition to any liability which the respective Underwriters such Holder may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act.
Appears in 1 contract
Sources: Series a Convertible Preferred Stock Purchase Agreement (Eccs Inc)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus Prospectus, including any road show, or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under of the ActRules and Regulations, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, or the Registration Statement or Prospectus as amended or supplemented or any Issuer Free Writing Prospectus, any such issuer information, a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter promptly after receipt of invoices from such Underwriter for any legal or other expenses as reasonably incurred by such Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments will be promptly refunded; provided, however, that the Company shall will not be liable under this Section 8(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter the Representatives, on behalf of Designated Securities through the Representatives Underwriters, expressly for use therein (which information is specified in any thereofSection 13 hereof).
(b) Each Underwriter severally Underwriter, severally, but not jointly, will indemnify and hold harmless the Company against any lossesloss, claimsclaim, damages damage or liabilities liability (or any action in respect thereof) to which the Company may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment the Disclosure Package, the Registration Statement or supplement to any thereofProspectus as amended or supplemented, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus, the Disclosure Package, the Registration Statement or Prospectus as amended or supplemented, or any Issuer Free Writing Prospectus, a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company promptly after receipt of invoices from the Company, as the case may be, for any legal or other expenses reasonably incurred by the Company in connection with investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action notwithstanding the possibility that payments for such expenses might later be held to be improper, in which case such payments will be promptly refunded; provided, however, that such indemnification or reimbursement will be available in each such case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Representatives, on behalf of such Underwriter through the Representatives Underwriter, expressly for use therein; and, subject to subsection therein (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company which information is specified in connection with investigating or defending any such action or claim as such expenses are incurredSection 13 hereof).
(c) Promptly after receipt by an any indemnified party under subsection (aSection 8(a) or (b8(b) above of notice of any claim or the commencement of any action, such the indemnified party shallwill, if a claim in respect thereof is to be made against the one or more indemnifying party parties under such subsection, notify the each indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission failure to so to notify the each such indemnifying party shall will not relieve it from any liability which it may have under this Section 8 except to the indemnifying party extent it has been prejudiced in any material respect by such failure or from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 8. In case If any such claim or action shall will be brought against any indemnified party party, and it shall notify the notifies each indemnifying party of the commencement thereof, the each such indemnifying party shall will be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any each other similarly notified indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the each indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the each such indemnifying party shall will not be liable to such the indemnified party under such subsection Section 8(a) or 8(b) above for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only , except that the Underwriters will have the right to employ counsel to represent the Underwriters who may be liable for the legal expenses subject to liability arising out of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to indemnity may be made sought by the Underwriters against the Company under Section 8(a) if (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Underwriters will have been advised by counsel that there may be one or more legal defenses available to the Underwriters which are different from or additional to those available to the Company and in the judgment of such counsel it is advisable for the Underwriters to employ separate counsel or (iii) the Company has failed to assume the defense of such action and employ counsel satisfactory to the Underwriters, in which event the reasonable fees and expenses of such separate counsel will be paid by the Company. No indemnifying party under such subsection will (i) without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder unless such settlement, compromise or judgment includes (A) an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (B) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party, or (ii) be liable for any settlement is of any such action effected without its written consent, but if settled with the consent of each indemnifying party or if there be a final judgment of the plaintiff in any such action, each such indemnifying partyparty agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 8(a) or (b8(b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall will, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in Section 8(a) or 8(b) above (or actions in respect thereofi) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (liabilities, or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall hand will be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative Relative fault shall will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (dSection 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in the first sentence of this subsection (dSection 8(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 the first sentence of this subsection (dSection 8(d) shall will be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing to defend or defending against any such action or claimclaim which is the subject of this Section 8(d). Notwithstanding the provisions of this subsection (dSection 8(d), no Underwriter shall will be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Notes underwritten by it and distributed to the public investors were offered to the public investors exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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 who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 8(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint. Each party entitled to contribution agrees that upon the service of a summons or other initial legal process upon it in any action instituted against it in respect to which contribution may be sought, it will promptly give written notice of such service to the party or parties from whom contribution may be sought, but the omission so to notify such party or parties of any such service will not relieve the party from whom contribution may be sought for any obligation it may have hereunder or otherwise (except as specifically provided in Section 8(c) above).
(e) The obligations of the Company under this Section 9 shall 8 will be in addition to any liability which that the Company may otherwise have have, and shall will extend, upon the same terms and conditionsconditions set forth in this Section 8, to each officer the respective officers and director directors of any Underwriter the Underwriters and to each person, if any, who controls any Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters under this Section 9 shall 8 will be in addition to any liability which that the respective Underwriters may otherwise have have, and shall will extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Securities Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter Underwriter, its affiliates and selling agents and each person who controls any Underwriter, its affiliates and selling agents within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement for the registration of the Securities as originally filed or in any amendment thereof, or in any preliminary prospectus, the Base Prospectus, any Preliminary Prospectus, the Pricing Final Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or the information contained in the final term sheet required to be prepared and filed pursuant to Rule 433(dSection 4(h) under the Acthereof, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party for any legal or other expenses reasonably incurred incurred, as such expenses are incurred, by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly for use in connection with the preparation thereof. This indemnity agreement will be in addition to any thereofliability that the Company may otherwise have.
(b) Each Underwriter severally will (and not jointly) agrees to indemnify and hold harmless the Company against any lossesCompany, claimseach of its directors, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out each of or are based upon an untrue statement or alleged untrue statement of a material fact contained in its officers who signs the Registration Statement, and each person who controls the Base Prospectus, any Preliminary Prospectus, Company within the Pricing Prospectus meaning of either the Act or the ProspectusExchange Act, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentsame extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives expressly specifically for use therein; andin the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the third and sixth paragraphs under the heading “Underwriting” of the Final Prospectus and the Disclosure Package, subject to subsection (c) belowconstitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Final Prospectus and the Disclosure Package, will reimburse and you, as the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any Representatives, confirm that such action or claim as such expenses statements are incurredcorrect.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 6 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 6, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 6 or otherwise. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party in writing of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of to represent the indemnified partyparty in such action; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume expenses of more than one separate counsel (in addition to any local counsel), approved by the defense thereofRepresentatives in the appoint counsel to defend such action and approval by the indemnified party of counsel, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 6 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party under subsection (a) or (b) above shall only not be liable for the legal expenses case of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection paragraph (a) of this Section 6, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (biii) above the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall not enter into a be only in respect of the counsel referred to in such clause (i) or (iii). No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any litigation pending or threatened action in respect of which any indemnified party is a claim is to be made against the indemnifying party under and indemnity was sought hereunder by such subsection indemnified party unless such settlement is effected with the consent includes an unconditional release of the indemnifying partyindemnified party from all liability on any claims that are the subject matter of such action.
(d) If In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this Section 9 6 is due in accordance with its terms but is for any reason held by a court to be unavailable from the Company or the Underwriters on grounds of policy or otherwise, the Company and the Underwriters shall contribute to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any the aggregate losses, claims, damages or and liabilities (including legal or actions other expenses reasonably incurred in respect thereofconnection with investigating or defending same) referred to therein, then each indemnifying party shall contribute to which the amount paid Company and one or payable by such indemnified party as a result more of such losses, claims, damages or liabilities the Underwriters may be subject (or actions in respect thereofi) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters. 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 omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), (y) in no case shall any Underwriter shall (except as may be required provided in any agreement among underwriters relating to contribute the offering of the Securities) be responsible for any amount in excess of the amount by which the total price at which the underwriting discount applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which Securities purchased by such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No hereunder and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of this Section 6, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Underwriters Company who shall have signed the Registration Statement and each director of Designated Securities the Company shall have the same rights to contribution as the Company, subject in each case to clauses (y) and (z) of this subsection paragraph (d) ). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify in writing such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d). The Underwriters’ obligations to contribute pursuant to this Section 7(d) are several in proportion to their respective underwriting obligations with respect to such securities commitments as set forth on Schedule II hereto, and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each of you and each other Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20
(a) the Exchange Act from and against any and all losses, claims, damages or liabilitiesdamages, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities and expenses (or actions in respect thereofincluding reasonable costs of investigation) arise arising out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in any Prepricing Prospectus or in the Registration Statement, Statement or the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, in any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise arising out of or are based upon the any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, andexcept insofar as such losses, subject claims, damages, liabilities or expenses arise out of or are based upon any untrue statement or omission or alleged untrue statement or omission which has been made therein or omitted therefrom in reliance upon and in conformity with the information relating to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter furnished in writing to the Company by or on behalf of any Underwriter through you expressly for use in connection with investigating or defending any such action or claim as such expenses are incurredtherewith; provided, however, that (i) the Company indemnification contained in this paragraph (a) with respect to any Prepricing Prospectus shall not be liable in any such case inure to the extent that benefit of any Underwriter (or to the benefit of any person controlling such Underwriter) on account of any such loss, claim, damage damage, liability or liability arises out expense arising from the sale of the Shares by such Underwriter to any person if (x) a copy of the Prospectus shall not have been delivered or is based upon an sent to such person within the time required by the Act and the regulations thereunder, and (y) the untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing such Prepricing Prospectus or was corrected in the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon provided that the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make Company has delivered the statements therein not misleading, in each case Prospectus to the extent, but only several Underwriters in requisite quantity on a timely basis to the extent that permit such untrue statement delivery or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigationsending. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 foregoing indemnity agreement shall be in addition to any liability which the Company may otherwise have and have.
(b) If any action, suit or proceeding shall extend, upon the same terms and conditions, to each officer and director of be brought against any Underwriter or any person controlling any Underwriter in respect of which indemnity may be sought against the Company, such Underwriter or such controlling person shall promptly notify the Company. The Company shall assume the defense thereof, including the employment of counsel and payment of all fees and expenses. Such Underwriter or any such controlling person shall have the right to employ separate counsel in any such action, suit or proceeding and to each personparticipate in the defense thereof, if any, who controls any Underwriter within but the meaning fees and expenses of the Act, and the obligations of the Underwriters under this Section 9 such counsel shall be at the expense of such Underwriter or such controlling person unless (i) the Company has agreed in addition writing to pay such fees and expenses, (ii) the Company has failed to assume the defense and employ counsel, or (iii) the named parties to any liability which the respective Underwriters may otherwise have such action, suit or proceeding (including any impleaded parties) include both such Underwriter or such controlling person and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.such Underwriter or such controlling person shall have been advised by its counsel that representation
Appears in 1 contract
Indemnification and Contribution. (a) The Company Transaction Entities, jointly and severally, will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, (A) any Preliminary Prospectus, the Pricing Prospectus Registration Statement, or the Prospectus, Prospectus as amended or supplemented or any amendment or supplement to any thereofthereto, or (B) any Issuer Free Writing Prospectus or in any amendment or supplement thereto, (C) any Permitted Issuer Information used or referred to in any “issuer informationfree writing prospectus” filed (as defined in Rule 405) used or required referred to be filed pursuant to by such Underwriter and set forth on Schedule III attached hereto or (D) any “road show” (as defined in Rule 433(d) 433 under the Securities Act) not constituting an Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, any Preliminary Prospectus and any Issuer Free Writing Prospectus, in light of the circumstances under which they are made) not misleading, and, subject to subsection (c) below, and will reimburse each such Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that none of the Company Transaction Entities shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the ProspectusRegistration Statement, any amendment or supplement to any thereof, or any Issuer Free Writing ProspectusProspectus and the Prospectus as amended or supplemented or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company Transaction Entities by any Underwriter of Designated Securities through the Representatives expressly for use therein, which information is set forth in any thereofExhibit A hereto.
(b) Each Underwriter severally will indemnify and hold harmless each of the Company Transaction Entities against any losses, claims, damages or liabilities to which the Company such Transaction Entity may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the ProspectusRegistration Statement, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, any “road show” (as defined in Rule 433 under the Securities Act) not constituting an Issuer Free Writing Prospectus and the Prospectus as amended or supplemented, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and any “road show” (as defined in Rule 433 under the Securities Act) not constituting an Issuer Free Writing Prospectus, in light of the circumstances under which they are made) not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the ProspectusRegistration Statement, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, any “road show” (as defined in Rule 433 under the Securities Act) not constituting an Issuer Free Writing Prospectus and the Prospectus as amended or supplemented, or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company such Transaction Entity by such an Underwriter through the Representatives expressly for use therein, which information is set forth in Exhibit A hereto; and, subject to subsection (c) below, and severally will reimburse the Company Transaction Entities for any legal or other expenses reasonably incurred by the Company Transaction Entities in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the an indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the such indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only except to the extent such indemnifying party it has been materially prejudiced by such omission so to notifyfailure. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party under subsection shall bear the reasonable fees, costs and expenses of such separate counsel if (ai) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (biv) above the indemnifying party shall only be liable for authorize the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or (b) above shall not enter into a settlement compromise of, or consent to the entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include any statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 10 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall shall, in lieu of indemnifying such indemnified party in respect of such losses, claims, damages or liabilities (or actions in respect thereto), 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company Transaction Entities on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Shares to which such loss, claim, damage or liability (or action in respect thereof) relates relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company Transaction Entities on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company Transaction Entities on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company Transaction Entities bear to the total underwriting discounts and commissions received by such the Underwriters. The relative fault shall be determined by reference to, among other thingsreference, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company Transaction Entities on the one hand or such the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Transaction Entities and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter the Underwriters shall not be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 obligations indemnifying party shall not be required to indemnify the indemnified party for any amount paid or payable by the indemnified party in the settlement of any action, proceeding or investigation without the written consent of the Underwriters indemnifying party, which consent shall not be unreasonably withheld, but if settled with such consent, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of Designated Securities such settlement. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 10 hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in this subsection (d) accordance with such request prior to contribute are several in proportion to their respective underwriting obligations with respect to the date of such securities and not jointsettlement.
(e) The obligations of the Company Transaction Entities under this Section 9 10 shall be in addition to any liability which the Company Transaction Entities may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any each Underwriter within the meaning of the Securities Act, ; and the obligations of the Underwriters each Underwriter under this Section 9 10 shall be in addition to any liability which the respective Underwriters each Underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company Transaction Entities and to each person, if any, who controls the Company Transaction Entities within the meaning of the Securities Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will Depositor and BMW Financial Services will, jointly and severally, indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter or such controlling person may become subjectsubject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the Depositor or BMW Financial Services in Section 2 hereof,
(ii) any untrue statement or alleged untrue statement of any material fact contained or incorporated in the Registration Statement, the preliminary prospectus, if any, the Time of Sale Information or the Prospectus or any amendment or supplement thereto,
(iii) the omission or alleged omission to state in the Registration Statement, the preliminary prospectus, if any, the Time of Sale Information or the Prospectus or any amendment or supplement thereto a material fact required to be stated therein or necessary to make the statements therein, not misleading, or
(iv) any untrue statement or alleged untrue statement of a material fact contained in a Permitted Underwriter Communication or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however that this subsection (iv) shall only apply to untrue statements, alleged untrue statements, omissions and alleged omissions that result from or are based upon errors or omissions (x) in the Registration Statement, the Preliminary Prospectus or the Prospectus (unless such errors or omissions are in the Underwriters' Information) and (y) in any Computer Tape Information; and will reimburse, as incurred, each such indemnified party for any legal or other costs or expenses reasonably incurred by it in connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action; provided, however, that the Depositor and BMW Financial Services will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in the preliminary prospectus, if any, the Time of Sale Information or the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with the Underwriters' Information; provided, further, that the Depositor and BMW Financial Services shall not be liable to any Underwriter or any of the directors, officers, employees and agents of an Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act with respect to any loss, claim, damage or liability that results from the fact that the Underwriter sold Notes to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, if delivery thereof was required, a copy of the Prospectus or of the Prospectus as then amended or supplemented, whichever is most recent, if the Depositor has previously furnished copies thereof to such Underwriter. The indemnity provided for in this Section 10 shall be in addition to any liability which the Depositor and BMW Financial Services may otherwise have. The Depositor and BMW Financial Services will not, without the prior written consent of the Representative, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not the Representative or any person who controls the Representative is a party to such claim, action, suit or proceeding), unless such settlement, compromise or consent (i) includes an unconditional release of all of the Underwriters and such controlling persons from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or admission of, fault, culpability or a failure to act by or on behalf of any Underwriter or controlling person.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless each of the Depositor and BMW Financial Services, each of its directors and officers and each person, if any, who controls the Depositor or BMW Financial Services within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Depositor, BMW Financial Services or any such director, officer or controlling person may become subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an (i) any untrue statement or alleged untrue statement of a any material fact contained in the Registration StatementStatement (or any amendment thereto) or the preliminary prospectus, if any, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Time of Sale Information or the Prospectus, Prospectus (or any amendment or supplement to any thereof, thereto) or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d(ii) under the Act, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration StatementStatement (or any amendment thereto), the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Time of Sale Information or the Prospectus, Prospectus (or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(bthereto) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by (x) such Underwriter's Underwriters' Information or (y) any permitted Underwriter Communication (other than Prepricing Information) of such Underwriter through that does not result from or was not based upon an error or omission in (A) the Representatives expressly for use therein; Registration Statement, the Time of Sale Information or the Prospectus (unless such error or omission is in the Underwriters' Information) or (B) any Computer Tape Information, and, subject to subsection (c) belowthe limitation set forth immediately preceding this clause, will reimburse the Company for reimburse, as incurred, any legal or other expenses reasonably incurred by the Company Depositor, BMW Financial Services or any such director, officer or controlling person in connection with investigating investigating, defending against or defending appearing as a third-party witness in connection with any such loss, claim, damage, liability or any action in respect thereof. The remedies provided for in this Section 10 are not exclusive and shall not limit any rights or claim as such expenses are incurredremedies which may otherwise be available to any indemnified party at law or in equity.
(c) Promptly after receipt by an indemnified party under subsection In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to paragraph (a) or (b) above of this Section 10, such person (for purposes of this paragraph (c), the "indemnified party") shall, promptly after receipt by such party of notice of the commencement of any such action, notify the person against whom such indemnified party shallindemnity may be sought (for purposes of this paragraph (c), if a claim in respect thereof is the "indemnifying party"), but the failure to be made against the indemnifying party under such subsection, so notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any liability which it may have to any indemnified party (i) under paragraph (a) or (b) of this Section 10 unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses or (ii) otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 10. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of which may be counsel to such indemnifying party if otherwise reasonably acceptable to the indemnified party); provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel one or more legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereofof any such action and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 10 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The , subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party under subsection (a) or (b) above shall only not be liable for the legal expenses of more than one separate counsel for all indemnified parties (in addition to local counsel in each jurisdiction applicable local jurisdiction) in which any claim one action or action is brought. An indemnified party under subsection separate but substantially similar actions arising out of the same general allegations or circumstances, designated in writing by the Representative in the case of paragraph (a) of this Section 10, representing the indemnified parties under such paragraph (a) who are parties to such action or actions), or (bii) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under does not promptly retain counsel satisfactory to the indemnified party, or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. All fees and expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they are incurred. After such subsection unless notice from the indemnifying party to such indemnified party, the indemnifying party will not be liable for the costs and expenses of any settlement is of such action effected with by such indemnified party without the consent of the indemnifying party.
(d) If In circumstances in which the indemnification indemnity agreement provided for in the preceding paragraphs of this Section 9 10 is unavailable to or insufficient insufficient, for any reason, to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein), then each indemnifying party party, in order to provide for just and equitable contribution, 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) in such proportion as is appropriate to reflect not only (i) the relative benefits received by the Company indemnifying party or parties on the one hand and the Underwriters of the Designated Securities indemnified party on the other from the offering of the Designated Securities to which Notes or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such loss, claim, damage or liability (or action in respect thereof) relates relative benefits but also the relative fault of the Company indemnifying party or parties on the one hand and the Underwriters of the Designated Securities indemnified party on the other in connection with the statements or omissions which or alleged statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company Depositor and BMW Financial Services on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering of the Notes (before deducting expenses) received by the Company Depositor bear to the total underwriting discounts and commissions received by such Underwritersthe Underwriters (the "Spread"), in each case as set forth in the Prospectus Supplement. The relative fault of the parties 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 omissions omission to state a material fact relates to information supplied by the Company on Depositor, BMW Financial Services or the one hand or such Underwriters on the other and Underwriters, the parties’ ' relative intentintents, knowledge, access to information and opportunity to correct or prevent such statement or omission, and any other equitable considerations appropriate in the circumstances. The Company Depositor, BMW Financial Services and the Underwriters agree that it would not be just and equitable if the amount of such contribution pursuant to this subsection (d) were determined by pro rata or per capita allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take into account of the equitable considerations referred to above in this subsection paragraph (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 subsection (d) shall be deemed to include Notwithstanding 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 provision of this subsection paragraph (d), no Underwriter shall be required obligated to contribute any amount make contributions hereunder that in excess of the aggregate exceed the amount by which the total price at which the applicable Designated Securities underwritten Spread received by it and distributed to in the public were offered to initial offering of such Notes, less the public exceeds the aggregate amount of any damages which that such Underwriter has otherwise been required to pay by reason in respect of such untrue the same or alleged untrue statement or omission or alleged omission. No any substantially similar claim, and no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations of the Underwriters of Designated Securities in this subsection (d) to contribute hereunder are several in proportion to their respective underwriting obligations with respect to such securities principal amount of Securities they have purchased hereunder, and not joint.
. For purposes of this paragraph (e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extendd), upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any an Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the obligations each director, officer, employee and agent of the Underwriters under this Section 9 an Underwriter shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms rights to contribution as such Underwriter, and conditions, to each officer and director of the Company Depositor and to BMW Financial Services, each officer of the Depositor and BMW Financial Services and each person, if any, who controls the Company Depositor and BMW Financial Services within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have the same rights to contribution as the Depositor and BMW Financial Services.
Appears in 1 contract
Sources: Underwriting Agreement (BMW Vehicle Owner Trust 2006-A)
Indemnification and Contribution. (a) The Company will Guarantor and the Trust, jointly and severally, agree to indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of the Act or the Exchange Act, against any losses, claims, damages damages, liabilities or liabilitiesexpenses (including the reasonable cost of investigating and defending against any claims therefore and counsel fees incurred in connection therewith), joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are be based upon an untrue statement either the Act, or the Exchange Act, or any other statute or at common law, on the ground or alleged untrue statement of a material fact contained in ground that any Final Supplemented Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Basic Prospectus or the ProspectusProspectus (or any such document, any amendment or supplement as from time to any thereoftime amended, or any Issuer Free Writing Prospectus or any “issuer information” filed or required deemed to be filed pursuant to Rule 433(damended, supplemented or modified) under the Act, includes or arise out allegedly includes an untrue statement of material fact or are based upon the omission or alleged omission omits to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by unless such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statementreliance upon, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with with, written information furnished to the Company Guarantor or the Trust by any Underwriter of Designated Securities through the Representatives expressly ▇▇▇▇▇▇▇, Sachs & Co. specifically for use in the preparation thereof; provided that in no case is the Guarantor or the Trust to be liable with respect to any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company claims made against any lossesUnderwriter or any such controlling person unless such Underwriter or such controlling person shall have notified the Guarantor in writing within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have been served upon such Underwriter or such controlling person, claimsbut failure to notify the Guarantor or Trust of any such claim shall not relieve it from any liability which it may have to such Underwriter or such controlling person otherwise than on account of the indemnity agreement contained in this paragraph; and provided, damages further, that the foregoing indemnity with respect to the, the Basic Prospectus, the Prospectus, and the Final Supplemented Prospectus shall not inure to the benefit of any Underwriter if a copy of the Basic Prospectus, the Prospectus, or liabilities the Final Supplemented Prospectus as amended or supplemented, had not been sent or given by or on behalf of such Underwriter to which the Company may become subject, under the Act or otherwise, insofar as person asserting any such losses, claims, damages or liabilities (concurrently with or actions in respect thereof) arise out prior to delivery of or are based upon an the written confirmation of the sale of Securities to such person and the untrue statement or omission of a material fact contained in any such Basic Prospectus, Prospectus, or Final Supplemented Prospectus was corrected in the Basic Prospectus, Prospectus or Final Supplemented Prospectus, as amended or supplemented. The Guarantor and the Trust will be entitled to participate at their own expense in the defense, or, if they so elect, to assume the defense of any suit brought to enforce any such liability, but, if the Guarantor or the Trust elects to assume the defense, such defense shall be conducted by counsel chosen by it. In the event that the Guarantor or the Trust elects to assume the defense of any such suit and retains such counsel, the Underwriter or Underwriters or controlling person or persons, defendant or defendants in the suit, may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) the Guarantor or the Trust shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit include the Underwriter or Underwriters or controlling person or persons and the Underwriter or Underwriters or controlling person or persons have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to the Guarantor or the Trust, in which case the Guarantor or the Trust shall not be entitled to assume the defense of such suit on behalf of such Underwriter or Underwriters or controlling person or persons, notwithstanding their obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that the Guarantor and the Trust shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such Underwriters and their controlling persons, which firm shall be designated in writing by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. The Guarantor and the Trust shall not be liable to indemnify any person for any settlement of any such claim effected without the Guarantor's or the Trust's consent. This indemnity agreement will be in addition to any liability which the Guarantor and the Trust might otherwise have.
(b) Each Underwriter agrees to indemnify and hold harmless the Guarantor and the Trust, each of the Guarantor's directors, each of the Guarantor's officers who have signed the Registration Statement, each of the Trustees who have signed the Registration Statement and each person, if any, who controls the Guarantor and the Trust within the meaning of the Act or the Exchange Act, against any losses, claims, damages, liabilities or expenses (including the reasonable cost of investigating and defending against any claims therefor and counsel fees incurred in connection therewith), joint or several, which may be based upon the Act, or any other statute or at common law, on the ground or alleged ground that any Final Supplemented Prospectus, the Registration Statement, the Basic Prospectus or the Prospectus (or any such document, as from time to time amended, or deemed to be amended, supplemented or modified) includes or allegedly includes an untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission omits to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, in each case to the extent, but only to the extent that insofar as any such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statementreliance upon, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with with, written information furnished to the Company Guarantor or the Trust by such Underwriter through the Representatives expressly ▇▇▇▇▇▇▇ Sachs & Co. specifically for use thereinin the preparation thereof; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company provided that in connection with investigating or defending any no case is such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is Underwriter to be liable with respect to any claims made against the indemnifying party under Guarantor or the Trust or any such subsectiondirector, notify officer, trustee or controlling person unless the indemnifying party Guarantor or the Trust or any such director, officer, trustee or controlling person shall have notified such Underwriter in writing within a reasonable time after the summons or other first legal process giving information of the commencement thereof; nature of the claim shall have been served upon the Guarantor or the Trust or any such director, officer, trustee or controlling person, but the omission so failure to notify the indemnifying party such Underwriter of any such claim shall not relieve the indemnifying party it from any liability which it may have to the Guarantor or the Trust or any indemnified party such director, officer, trustee or controlling person otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party on account of the commencement thereof, the indemnifying party shall indemnity agreement contained in this paragraph. Such Underwriter will be entitled to participate therein andat its own expense in the defense, to the extent that or, if it shall wish, jointly with any other indemnifying party similarly notifiedso elects, to assume the defense thereofof any suit brought to enforce any such liability, with but, if such Underwriter elects to assume the defense, such defense shall be conducted by counsel satisfactory to chosen by it. In the event that such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so Underwriter elects to assume the defense thereofof any such suit and retain such counsel, the indemnifying party Guarantor or the Trust or any such director, officer, trustee or controlling person, defendant or defendants in the suit, may retain additional counsel but shall bear the fees and expenses of such counsel unless (i) such Underwriter shall have specifically authorized the retaining of such counsel or (ii) the parties to such suit include the Guarantor or the Trust or any such director, officer, trustee or controlling person and such Underwriter and the Guarantor or the Trust or such director, officer, trustee or controlling person have been advised by such counsel that one or more legal defenses may be available to it or them which may not be available to such Underwriter, in which case such Underwriter shall not be entitled to assume the defense of such suit on behalf of the Guarantor or the Trust or any such director, officer, trustee or controlling person, notwithstanding its obligation to bear the reasonable fees and expenses of such counsel, it being understood, however, that such Underwriter shall not, in connection with any one such suit or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all of the Guarantor or the Trust and any such director, officer, trustee or controlling person, which firm shall be designated in writing by the Guarantor. Such Underwriter shall not be liable to such indemnified party under such subsection indemnify any person for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation such claim effected without such Underwriter's consent. This indemnity agreement will be in respect of addition to any liability which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying partyUnderwriter might otherwise have.
(dc) If the indemnification provided for in this recovery is not available under Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a6(a) or (b6(b) above in respect of hereof, for any losses, claims, damages or liabilities (or actions in respect thereof) referred to reason other than as specified therein, then each indemnifying party the parties entitled to indemnification by the terms thereof shall contribute be entitled to contribution for liabilities and expenses, except to the extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount paid or payable by such indemnified party as a result of such lossescontribution to which the respective parties are entitled, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect not only there shall be considered the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other each party from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also taking into account the relative fault portion of the Company on the one hand and the Underwriters proceeds of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereofoffering realized by each), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other and the parties’ ' relative intent, knowledge, knowledge and access to information and concerning the matter with respect to which the claim was asserted, the opportunity to correct or and prevent such any statement or omission, and any other equitable considerations appropriate under the circumstances. The Company Guarantor and the Trust and the Underwriters agree that it would not be just and equitable if the amount of such contribution pursuant to this subsection (d) were determined by pro rata or per capita allocation (even if the Underwriters were treated as one entity for such purpose) ). No Underwriters or by any other method of allocation person controlling such Underwriters shall be obligated to make contribution hereunder which does not take account in the aggregate exceeds the total public offering price of the equitable considerations referred to above in this subsection (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 subsection (d) shall be deemed to include any legal or other expenses reasonably incurred Securities purchased by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding Underwriters under this Agreement, less the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the aggregate amount of any damages which such Underwriter has Underwriters and its controlling persons have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) in respect of the Act) shall be entitled to contribution from same claim or any person who was not guilty of such fraudulent misrepresentationsubstantially similar claim. The Underwriters' obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities obligations, and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, subject under the Act, the Exchange Act or otherwise, specifically including but not limited to losses, claims, damages or liabilities related to negligence on the part of any Underwriter, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any breach of any representation, warranty, agreement or covenant of the Company herein contained or any untrue statement or alleged untrue statement of a any material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances in which they were made, not misleading, and, subject ; and agrees to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter it in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectussupplement, in reliance upon and in strict conformity with written information furnished with respect to the Company by any Underwriter of Designated Securities through the Representatives by such Underwriter expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, Prospectus or any amendment or supplement thereto, provided that such written information or omissions only pertain to disclosures in the Registration Statement, any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto directly relating to the transactions effected by the Underwriters in connection with this offering, and provided further that the foregoing indemnity with respect to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein Preliminary Prospectus shall not misleading, in each case inure to the extent, but only benefit of any Underwriter (or to the extent that benefit of any person controlling such Underwriter) if such untrue statement or omission or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, Prospectus is eliminated or remedied in the Pricing Prospectus or and a copy of the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information Prospectus has not been furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for person asserting any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (at or action in respect thereof) relates but also prior to the relative fault written confirmation of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason sale of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not jointperson.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will indemnify agrees to indemnify, defend and hold harmless each Underwriter and its respective officers, shareholders, employees and directors and any person who controls any Underwriter within the meaning of Section 15 of the Act from and against any lossesloss, claimsexpense, damages liability or liabilitiesclaim (including the reasonable cost of investigating such claim) that, joint jointly or severalseverally, to which any such Underwriter or any such officer, shareholder, employee, director or controlling person may become subject, incur under the Act, the Exchange Act or otherwise, as such expenses are incurred, insofar as such lossesloss, claimsexpense, damages liability or liabilities (or actions in respect thereof) arise claim arises out of or are is based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Statement (or in the Base Prospectus, Registration Statement as amended by any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any post-effective amendment or supplement to any thereof, ) or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated in such Registration Statement or necessary to make the statements made therein not misleading or any untrue statement or alleged untrue statement of a material fact contained in a Prospectus (the term Prospectus for the purpose of this Section 8 being deemed to include any Preliminary Prospectus, the Prospectus, the Prospectus as amended or supplemented and any document filed under the Exchange Act and incorporated by reference into the Prospectus) or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall will not be liable in any such case to the extent any such loss, expense, liability or claim arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission that has been made therein or omitted therefrom in reliance upon and in conformity with the information provided in writing to the Company by or on behalf of any Underwriter, expressly for use in the Registration Statement or the Prospectus; and provided, further that with respect to any untrue statement or omission or alleged untrue statement or omission made in any Preliminary Prospectus, the indemnity agreement contained in this Section 8(a) shall not inure to the benefit of any such indemnified Underwriter or its respective officers, shareholders, employees and directors, and the Company shall not be liable to any such indemnified Underwriter or its respective officers, shareholders, employees and directors, from whom the person asserting any such losses, claims, damage, or liabilities purchased the Shares concerned, to the extent that any such loss, claim, damage or liability of such indemnified Underwriter or its respective officers, shareholders, employees and directors results from the
(b) Each Selling Shareholder agrees severally and not jointly to indemnify, defend and hold harmless each Underwriter and its respective officers, shareholders, employees and directors and any person who controls any Underwriter within the meaning of Section 15 of the Act from and against any loss, expense, liability or claim (including the reasonable cost of investigating such claim) that, jointly or severally, any such Underwriter or any such officer, shareholder, employee, director or controlling person may incur under the Act, the Exchange Act or otherwise, as such expenses are incurred, insofar as such loss, expense, liability or claim arises out of or is based upon an any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission to state a material fact required to be stated in such Registration Statement or necessary to make the statements made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, therein not misleading or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in a Prospectus (the Registration Statement, term Prospectus for the Base Prospectus, purpose of this Section 8 being deemed to include any Preliminary Prospectus, the Pricing Prospectus, the Prospectus as amended or supplemented and any document filed under the Exchange Act and incorporated by reference into the Prospectus, any amendment or supplement to any thereof, ) or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged any untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written any information furnished to the Company by or on behalf of such Underwriter through the Representatives Selling Shareholder expressly for use thereinin the Registration statement (or in the Registration Statement as amended by any post-effective amendment thereof); andprovided, subject however, that with respect to subsection (cany untrue statement or omission or alleged untrue statement or omission made in any Preliminary Prospectus, the indemnity agreement contained in this Section 8(b) belowshall not inure to the benefit of any such indemnified Underwriter or its respective officers, will reimburse shareholders, employees and directors, and the Selling Shareholders shall not be liable to any such indemnified Underwriter or its respective officers, shareholders, employees and directors, from whom the person asserting any such losses, claims, damage, or liabilities purchased the Shares concerned, to the extent that any such loss, claim, damage or liability of such indemnified Underwriter or its respective officers, shareholders, employees and directors results from the fact that there was not sent or given to such person at or prior to the written confirmation of the sale of such shares to such person, a copy of the Prospectus, as the same may be amended or supplemented, and the untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such Preliminary Prospectus was corrected in such Prospectus and the Company for any legal had previously furnished copies thereof to such indemnified Underwriter on a timely basis to permit the Prospectus (as the same may be amended or other expenses reasonably incurred supplemented) to be sent or given, and provided further, that the liability of each Selling Shareholder pursuant hereto shall not exceed an amount equal to the net proceeds received by such Selling Shareholder from the Company in connection with investigating or defending any such action or claim as such expenses are incurredsale of its Shares hereunder to the Underwriters.
(c) Promptly after receipt by Each Underwriter agrees to indemnify, defend and hold harmless (i) each Selling Shareholder and its officers, partners, shareholders, employees and directors and any person
(d) If any action is brought against an indemnified party under subsection (a) or (b) above of notice of this Section 8, the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, or parties shall promptly notify the indemnifying party in writing of the commencement thereof; but institution of such action (provided that the omission so failure to notify the indemnifying party give such notice shall not relieve the indemnifying party from of any liability which that it may have pursuant to any indemnified party otherwise than under such subsection this Agreement, unless and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party did not otherwise learn of such action and such failure has resulted in the commencement thereof, forfeiture of substantive rights or defenses by the indemnifying party) and the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofof such action, including the employment of counsel and payment of reasonable expenses. The indemnified party or parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the indemnified party or parties unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such action, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to take charge of the defense of such action within a reasonable time after notice of the institution of such action, (iii) such indemnified party (who or parties shall not, except with the consent of the indemnified party, have reasonably concluded that there may be counsel defenses available to it or them that are different from or additional to those available to the indemnifying party), and, after notice from party or (iv) the use of counsel chosen by the indemnifying party to such represent the indemnified party would present such counsel with a conflict of its election so interest (in which case the indemnifying party shall not have the right to assume direct the defense thereofof such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the indemnifying party and paid as incurred; provided that the indemnifying party shall only be responsible for the fees and expenses of one counsel for the indemnified party or parties hereunder. Anything in this paragraph to the contrary notwithstanding, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses settlement of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above effected without its written consent, which consent shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying partyunreasonably withheld.
(de) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (bc) above of this Section 8 in respect of any losses, claimsdamages, damages expenses, liabilities or liabilities (or actions in respect thereof) claims referred to therein, then each applicable indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claimsexpenses, damages liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the Selling Shareholders and the Underwriters from the offering of the Shares or actions in respect thereof(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand indemnifying parties and the Underwriters of the Designated Securities on the other indemnified party in connection with the statements or omissions which that resulted in such losses, expenses, liabilities or claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The
(f) The relative benefits received by Company, the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Selling Shareholders and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereofSection 8(e) referred to above in this subsection (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 claimabove. Notwithstanding the provisions of this subsection (d)Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the underwriting discount applicable Designated Securities underwritten by it and distributed to the public were offered Shares purchased by such Underwriter and no Selling Shareholder shall be required to contribute any amount in excess of the net proceeds received by such Selling Shareholder from the sale of its Shares to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omissionUnderwriters hereunder. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Statement or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact fact, in the case of the Registration Statement or any amendment thereto, required to be stated therein or necessary to make the statements therein not misleading and, in the case of, the Prospectus or any supplement thereto, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter the Underwriters for any reasonable legal or expenses of one set of counsel for all of the Underwriters and one set of local counsel in each applicable jurisdiction for all of the Underwriters, and for other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, Statement or the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives Canaccord ▇▇▇▇▇ Inc. expressly for use in any thereoftherein.
(b) Each Underwriter will severally will and not jointly indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Statement or the Prospectus, or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact fact, in the case of the Registration Statement or any amendment thereto, required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus or any supplement thereto, necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, Statement or the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives Canaccord ▇▇▇▇▇ Inc. expressly for use therein, and (ii) any breach of Section 5.1 of this Agreement; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Canaccord ▇▇▇▇▇ Inc. will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject insofar as such losses, claims, damages or liabilities (or action in respect thereof) arise out of the conditions set forth in Section 5.1 hereof not being fulfilled.
(d) Promptly after receipt by an indemnified party under subsection (a) ), (b), or (bc) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but provided, however, that the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a claim is statement as to be made against the or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. No indemnifying party under such subsection unless such shall be liable for any settlement is effected with the of any action or claim affected without its written consent, which consent of the indemnifying partyshall not be unreasonably withheld.
(de) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) ), (b), or (bc) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (d) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company Company, bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus Supplement. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters 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 Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (de) were determined by pro rata allocation (even if the Underwriters 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 subsection (de). 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 subsection (de) 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 subsection (de), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (de) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(ef) The obligations of the Company under this Section 9 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters Underwriter under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Registration Statement or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, any “road show” (as defined in Rule 433 under the Act) not constituting an Issuer Free Writing Prospectus (a “Non-Prospectus Road Show”) or any “free writing prospectus” (as defined in Rule 405 under the Act), or arise out of or are based upon the omission or alleged omission to state therein a material fact fact, in the case of the Registration Statement or any amendment thereto, required to be stated therein or necessary to make the statements therein not misleading and, in the case of any Preliminary Prospectus, the Prospectus or any supplement thereto, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act or a Non-Prospectus Road Show, necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Registration Statement or the Prospectus or the Prospectus, any such amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, Prospectus or any Non-Prospectus Road Show in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereoftherein.
(b) Each Underwriter will severally will and not jointly indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Registration Statement or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing ProspectusProspectus or any Non-Prospectus Road Show, or arise out of or are based upon the omission or alleged omission to state therein a material fact fact, in the case of the Registration Statement or any amendment thereto, required to be stated therein or necessary to make the statements therein not misleading and, in the case of any Preliminary Prospectus, the Prospectus or any supplement thereto, any Issuer Free Writing Prospectus or any Non-Prospectus Road Show, necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Registration Statement or the Prospectus or the Prospectus, any such amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, Prospectus or any Non-Prospectus Road Show in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but provided, however, that the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a claim is statement as to be made against the or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. No indemnifying party under such subsection unless such shall be liable for any settlement is or compromise of any action or claim effected with the without its written consent, which consent of the indemnifying partyshall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) actually received by the Company Company, bear to the total underwriting discounts and commissions actually received by such the Underwriters, in each case as set forth in the table on the cover page of the Pricing Prospectus and the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters 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 Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter Agent and each person who controls any Agent within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilitiesliabilities and reasonable expenses (including reasonable costs of investigation), as incurred, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise arising out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement as originally filed or in any amendment thereof, or in any preliminary prospectus, any preliminary supplemental prospectus, the Base Prospectus, any Preliminary Prospectus, the Pricing Note Prospectus or the Prospectus, in any amendment thereof or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise arising out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that (i) the Company shall will not be liable in any such case to the extent that any such loss, claim, damage damage, liability or liability expense arises out of or is based upon an any untrue statement or alleged untrue statement omission, or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any allegation thereof, which has been made therein or any Issuer Free Writing Prospectus, omitted therefrom in reliance upon and in conformity with written information furnished to the Company by any Underwriter or on behalf of Designated Securities through the Representatives expressly such Agent specifically for use therein, and (ii) such indemnity with respect to any preliminary prospectus, any preliminary supplemental prospectus, the Prospectus or the Note Prospectus shall not inure to the benefit of such Agent (or any person controlling such Agent), if the Company shall have delivered sufficient quantities of the Note Prospectus, as amended and supplemented, to such Agent within a reasonable time prior to the earlier of the delivery of the written confirmation of the sale of such Notes or the delivery of such Notes to the person asserting such loss, claim, damage, liability or action for which indemnification is sought, and the Note Prospectus as so amended and supplemented (excluding documents incorporated by reference) was not sent or given to such person at or prior to the earlier of the delivery of the written confirmation of the sale of such Notes or the delivery of such Notes to such person in any thereofcase where such sending or giving of a prospectus is required by the Act and the untrue statement or omission of a material fact contained in such preliminary prospectus, such preliminary supplemental prospectus, such Prospectus or such Note Prospectus was corrected in the Note Prospectus, as so amended and supplemented, provided to such Agent. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally will Agent agrees to indemnify and hold harmless the Company against any lossesCompany, claimseach person, damages or liabilities to which if any, who controls the Company may become subject, under within the meaning of either the Act or otherwisethe Exchange Act, each director of the Company and each officer of the Company who signs the Registration Statement or any amendment thereto to the same extent as the foregoing indemnity from the Company to such Agent, but only insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission which was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished supplied to the Company by or on behalf of such Underwriter through the Representatives expressly Agent with respect to such Agent specifically for use therein; and, subject . This indemnity agreement will be in addition to subsection (c) below, will reimburse any liability which the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredAgents may otherwise have.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 6 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 6, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall will not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifySection 6(a) or 6(b). In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein andtherein, and to the extent that it shall wish, jointly with any other indemnifying may elect by written notice delivered to the indemnified party similarly notifiedpromptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall notparty; provided, except with however, that if the consent of defendants in any such action include both the indemnified party, party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense thereofof such action and approval by the indemnified party of counsel, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 6 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of investigation. The legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party under subsection (a) or (b) above shall only not be liable for the legal expenses of more than one separate counsel for all indemnified parties (other than local counsel), approved by the Agents in each jurisdiction in which any claim or action is brought. An indemnified party under subsection the case of paragraph (a) or of this Section 6, representing the indemnified parties under such paragraph (ba) above shall not enter into a settlement of any litigation in respect of which a claim is who are parties to be made against such action), (ii) the indemnifying party under such subsection unless such settlement is effected with shall not have employed counsel satisfactory to the consent indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 9 6 is unavailable to or insufficient to hold harmless an indemnified party under subsection paragraph (a) or (b) above of this Section 6 in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities relevant Agent on the other from the offering of the Designated Securities Notes to which such loss, claim, damage or liability (or action in respect thereof) relates relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities such Agent on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters Agent on the other shall be deemed to be in the same proportion as the total net proceeds from the sale of such offering Notes (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions (total discounts, in the case of a Terms Agreement) received by such UnderwritersAgent in respect thereof pursuant to Section 1. The relative fault shall be determined by reference to, among other things, whether the indemnified party failed to give the notice required under paragraph (c) of this Section 6, including the consequences of such failure, and whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading relates to information supplied by the Company on the one hand or by such Underwriters Agent on the other other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, of the Company on the one hand or such Agent on the other. The Company and the Underwriters Agents agree that it would not be just and equitable if contribution pursuant to this subsection paragraph (d) of this Section 6 were determined by pro rata allocation (even if the Underwriters 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 subsection paragraph (d)) of this Section 6. 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 subsection paragraph (d) of this Section 6 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 claimclaim (which shall be limited as provided in paragraph (c) of this Section 6 if the indemnifying party has assumed the defense of any such action in accordance with the provisions thereof). Notwithstanding the provisions of this subsection paragraph (d), no Underwriter Agent shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by Notes sold to or through it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend6, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any Underwriter an Agent within the meaning of the ActAct shall have the same rights to contribution as such Agent, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement or any amendment thereto and each director of the Company shall have the same rights to contribution as the Company. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against any other party or parties under this paragraph (d) of this Section 6, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d) of this Section 6.
Appears in 1 contract
Indemnification and Contribution. (a) The Company and the Trust will jointly and severally indemnify and hold harmless the Remarketing Agent its partners, directors and officers and each Underwriter person, if any, who controls such Remarketing Agent within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter the Remarketing Agent may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the ProspectusRemarketing Materials, or any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(dsupplement(s) under the Actthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter the Remarketing Agent for any legal or other expenses reasonably incurred by such Underwriter the Remarketing Agent in connection with investigating or defending any such action or 38 141 claim as such expenses are incurred; provided, however, that neither the Company nor the Trust shall not be liable in any such case to the extent that any such loss, claim, damage or liability or action in respect thereof arises out of or is based upon an untrue statement statement, or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, Remarketing Materials or any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, supplement(s) in reliance upon and in conformity with written information furnished to the Company and the Trust by any Underwriter of Designated Securities through the Representatives Remarketing Agent expressly for use therein; provided, further, that neither the Trust nor the Company nor MetLife shall be liable to the Remarketing Agent under the indemnity agreement in this subsection (a) with respect to any thereofPreliminary Prospectus to the extent that a court of competent jurisdiction has found by final and nonappealable order that any such loss, claim, damage or liability of the Remarketing Agent results from the fact that the Remarketing Agent sold any Remarketed Capital Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus as then amended or supplemented (it being understood that if at the time of any such claim the Remarketing Agent shall certify that it has sent or given the Prospectus as then amended or supplemented to any person making such claim at or prior to the written confirmation of such sale, it shall be presumed that such Prospectus has been so sent or given unless the Trust or the Company or MetLife shall have sustained the burden of proving, in a court of competent jurisdiction by a final and nonappealable order, that the facts are otherwise), if (i) such delivery to such person is required by Section 5 of the Act, (ii) the Company or MetLife has furnished copies of such Prospectus as amended or supplemented to the Remarketing Agent a reasonable period of time prior to the Remarketing Agent being required so to deliver such Prospectus as amended or supplemented and (iii) the untrue or alleged untrue statement or omission or alleged omission of material fact contained in the Preliminary Prospectus was corrected by such Prospectus as amended or supplemented.
(b) Each Underwriter severally The Remarketing Agent will indemnify and hold harmless the Company or the Trust, as applicable, and in the case of the Company and the Trust, their respective directors and officers who sign the Registration Statement or the Remarketing Materials and each person, if any, who controls the Trust or the Company within the meaning of Section 15 of the Act against any losses, claims, damages or liabilities to which the Company Company, MetLife or the Trust may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Remarketing Materials, or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectusthereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement, the Base Prospectus, any Preliminary Prospectus, Remarketing Materials or the Pricing Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company Company, or the Trust by such Underwriter through the Representatives Remarketing Agent 39 142 expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company Company, or the Trust, as applicable, for any legal or other expenses reasonably incurred by the Company or the Trust in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only subsection, to the extent such the indemnifying party has been prejudiced by such omission so to notifyis actually prejudiced. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense defence thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the prior written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 6 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company Company, and the Trust on the one hand and the Underwriters of the Designated Securities Remarketing Agent on the other from the offering of Remarketing. If, however, the Designated Securities allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is 40 143 appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Trust on the one hand and the Underwriters of the Designated Securities Remarketing Agent on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Trust on the one hand and such Underwriters the Remarketing Agent on the other shall be deemed to be in the same proportion as the total net proceeds from such offering aggregate stated liquidation amount (before deducting expensesif the remarketed securities are the Capital Securities) or the aggregate principal amount (if the remarketed securities are the Debentures) of the remarketed securities bear to the remarketing fees received by the Company bear to Remarketing Agent from the total underwriting discounts and commissions received by such UnderwritersIssuers under this Agreement. 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 omissions omission to state a material fact relates to information supplied by the Company or the Trust on the one hand or such Underwriters the Remarketing Agent on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, the Trust and the Underwriters Remarketing Agent agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter the Remarketing Agent shall not be required to contribute any amount in excess of the amount by which the total price at which aggregate stated liquidation amount (if the applicable Designated Securities underwritten by it and distributed to remarketed securities are the public were offered to Capital Securities) or aggregate principal amount if the public remarketed securities are the Debentures) of the remarketed securities exceeds the amount of any damages which such Underwriter the Remarketing Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company and the Trust under this Section 9 6 shall be in addition to any liability which the Company or the Trust may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter the Remarketing Agent within the meaning of the Act, and the . The obligations of the Underwriters Remarketing Agent under this Section 9 6 shall be in addition to any liability which the respective Underwriters Remarketing Agent may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company of the Trust and to each person, if any, who controls the Company or the Trust within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter, the directors and officers of each Underwriter and each person who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they or any of them may become subject, subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration StatementStatement for the registration of the Securities as originally filed or in any amendment thereof, the Base Prospectus, or in any Preliminary Prospectus, the Pricing Prospectus or the Final Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or the information contained in the final term sheet required to be prepared and filed pursuant to Rule 433(dSection 4(b) under the Acthereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party, as incurred, for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly specifically for use in connection with the preparation thereof. This indemnity agreement will be in addition to any thereofliability which the Company may otherwise have.
(b) Each Underwriter severally will and not jointly agrees to indemnify and hold harmless the Company against any lossesCompany, claimseach of its directors and officers, damages or liabilities to which and each person who controls the Company may become subject, under within the meaning of either the Act or otherwisethe Exchange Act, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extentsame extent as the foregoing indemnity from the Company in Section 7(a) hereto, but only with reference to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives expressly specifically for use therein; andin the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page regarding delivery of the Securities and under the heading “Underwriting”, subject (i) the list of Underwriters and their respective participation in the sale of the Securities, (ii) the sentences related to subsection concessions and reallowances and (ciii) belowthe five paragraphs related to over-allotments, will reimburse syndicate covering transactions, stabilization transactions and penalty bids constitute the Company only information furnished in writing by or on behalf of the several Underwriters for any legal or other expenses reasonably incurred by inclusion in the Company documents referred to in connection with investigating or defending any such action or claim as such expenses are incurredthe foregoing indemnity.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 7 of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall (i) will not relieve it from any liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any liability obligations to any indemnified party which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 7. In case any such action shall be is brought against any indemnified party party, and it shall notify notifies the indemnifying party of the commencement thereof, the indemnifying party shall will be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with appoint counsel satisfactory to such indemnified party (who shall not, except with the consent of to represent the indemnified partyparty in such action; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume appoint counsel to defend such action and approval by the defense thereofindemnified party of such counsel, the indemnifying party shall will not be liable to such indemnified party under such subsection this Section 7 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs unless (i) the use of investigation. The counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel), approved by the Representatives in the case of paragraph (a) of this Section 7, representing the indemnified parties under subsection such paragraph (a) who are parties to such action), (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iv) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. An indemnifying party shall not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) or (b) above shall only be liable of this Section 7 is due in accordance with its terms but is for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into reason held by a settlement of any litigation in respect of which a claim is court to be made against unavailable from the indemnifying party under such subsection unless such settlement is effected with Company on grounds of policy or otherwise, the consent of Company and the indemnifying party.
(d) If Underwriters shall contribute to the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any aggregate losses, claims, damages or and liabilities (including legal or actions other expenses reasonably incurred in respect thereofconnection with investigation or defending same) referred (collectively “Losses”) to therein, then each indemnifying party shall contribute to which the amount paid Company and one or payable by such indemnified party as a result more of such losses, claims, damages or liabilities (or actions in respect thereof) the Underwriters may be subject in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and by the Underwriters of the Designated Securities on the other from the offering of the Designated Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to which reflect not only such loss, claim, damage or liability (or action in respect thereof) relates relative benefits but also the relative fault of the Company on the one hand and of the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefits Benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as equal to the total net proceeds from such the offering (before deducting expenses) received by it, and benefits received by the Company bear Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by such Underwriterscommissions, in each case as set forth on the cover page of the Final Prospectus. The relative Relative fault shall be determined by reference to, among other things, whether the any untrue or any alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied provided by the Company on the one hand or such the Underwriters on the other other, the intent of the parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 claimabove. Notwithstanding the provisions of this subsection paragraph (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend7, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, person who controls any an Underwriter within the meaning of the ActAct shall have the same rights to contribution as such Underwriter, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to preceding sentence of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d).
Appears in 1 contract
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, the Disclosure Package, or any “issuer free writing prospectus” (as defined in Rule 433(d) under the Securities Act) relating to the offering of the Securities, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or Prospectus, the Prospectus, or any amendment or supplement to any thereofthereto, the Disclosure Package, or any Issuer Free Writing Prospectussuch issuer free writing prospectus, made in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereoftherein.
(b) Each Underwriter will, severally will and not jointly, indemnify and hold harmless the Company against any lossesto the same extent as the indemnity set forth in Section 8(a) hereof, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, but only insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein state, a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred; it being understood and agreed that the only written information furnished to the Company by such Underwriter through the Representatives expressly for use in the Registration Statement, any amendment thereto, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any amendment or supplement thereto is the name of such Underwriter set forth on the cover page and the concession and reallowance figures appearing in the third paragraph and the ninth, tenth and twentieth paragraphs under the caption “Underwriting”, in each case, in the Preliminary Prospectus, the Pricing Prospectus and the Prospectus.
(c) Promptly after receipt by an indemnified party under subsection (aSection 8(a) or (b8(b) above hereof of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionSection 8(a) or 8(b), as the case may be, notify the indemnifying party in writing of the commencement thereof; but the omission to so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to Section 8(a) or 8(b), as the extent such indemnifying party has been prejudiced by such omission so to notifycase may be. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection Section 8(a) or 8(b), as the case may be, for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The ; provided, however, that any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party under subsection (a) and the indemnified party shall have mutually agreed to the retention of such counsel or (bii) above the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that, notwithstanding the preceding sentence of this Section 8(c), the indemnifying party shall only not be liable for the legal reasonable fees and expenses of more than one separate firm (in addition to not more than one separate local counsel for all indemnified parties in each any jurisdiction in which any claim or action is brought. An the indemnified party under subsection (arequires representation by separate counsel) for all such indemnified parties. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or (b) above shall not enter into a settlement compromise of, or consent to the entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a claim statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. An indemnifying party shall not be liable for any settlement effected by an indemnified party without its prior written consent, but if the settlement is to be made against with such consent, the indemnifying party under agrees to indemnify the indemnified party from and against any loss or liability by reason of such subsection unless such settlement is effected with the consent of the indemnifying partysettlement.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 8(a) or (b8(b) above hereof in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company Company, on the one hand hand, and the Underwriters of the Designated Securities Underwriters, on the other other, from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under Section 8(c) hereof, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company Company, on the one hand hand, and the Underwriters of the Designated Securities Underwriters, on the other other, in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company Company, on the one hand hand, and such Underwriters the Underwriters, on the other other, shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth on the cover page of the Prospectus. 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 omissions omission to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading relates to information supplied by the Company Company, on the one hand hand, or such Underwriters by the Underwriters, on the other other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (dSection 8(d) were determined by pro rata allocation (even if the Underwriters 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 subsection (dSection 8(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 subsection (dSection 8(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 subsection (dSection 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (dSection 8(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and any other affiliate (within the meaning of Rule 405 under the Securities Act, ) of any Underwriter; and the obligations of the Underwriters under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to Company, each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and any other affiliate (within the meaning of Rule 405 under the Securities Act) of the Company.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Registration Statement or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or any “road show” (as defined in Rule 433 under the Act) not constituting an Issuer Free Writing Prospectus (a “Non-Prospectus Road Show”) or arise out of or are based upon the omission or alleged omission to state therein a material fact fact, in the case of the Registration Statement or any amendment thereto, required to be stated therein or necessary to make the statements therein not misleading and, in the case of any Preliminary Prospectus, the Prospectus or any supplement thereto, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or a Non-Prospectus Road Show, necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Registration Statement or the Prospectus or the Prospectus, any such amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, Prospectus or any Non-Prospectus Road Show in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives Canaccord A▇▇▇▇ Inc. expressly for use in any thereoftherein.
(b) Each Underwriter will severally will and not jointly indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Registration Statement or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing ProspectusProspectus or any Non-Prospectus Road Show, or arise out of or are based upon the omission or alleged omission to state therein a material fact fact, in the case of the Registration Statement or any amendment thereto, required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Preliminary Prospectus, the Prospectus or any supplement thereto, any Issuer Free Writing Prospectus or any Non-Prospectus Road Show, necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Registration Statement or the Prospectus or the Prospectus, any such amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, Prospectus or any Non-Prospectus Road Show in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives Canaccord A▇▇▇▇ Inc. expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but provided, however, that the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a claim is statement as to be made against the or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. No indemnifying party under such subsection unless such shall be liable for any settlement is of any action or claim effected with the without its written consent, which consent of the indemnifying partyshall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 9 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company Company, bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Pricing Prospectus and the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such the Underwriters 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 Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters Underwriter under this Section 9 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will a. IMSC shall indemnify and hold harmless the Vendor, its members, managers, directors and officers (if any), each Underwriter underwriter, within the meaning of the 1933 Act, who may purchase from or sell for the Vendor any Registrable Securities and any person or entity who "controls" any of the foregoing within the meaning of the 1933 Act (each, a "Seller") from and against any and all losses, claims, damages damages, liabilities and expenses (including without limitation, amounts paid in settlement of any litigation, commenced or liabilitiesthreatened, or claim based upon matters covered by the indemnities provided for in this sentence, and expenses reasonably incurred in defending against any such commenced or threatened litigation or claims), joint or several, to which such Underwriter Seller may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) subject which arise out of or are based upon an on any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement, the Base Prospectusprospectus or other document incident to any registration, qualification or compliance (or in any Preliminary Prospectusrelated registration statement, the Pricing Prospectus notification or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or like) required to be filed pursuant to Rule 433(d) under the Act, or arise out furnished by reason of this Agreement or are based upon the caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, andexcept insofar as such losses, subject to subsection (c) belowclaims, will reimburse each Underwriter for any legal damages, liabilities or other expenses reasonably incurred are caused by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance based upon and in conformity with written information furnished in writing to the Company IMSC by any Underwriter of Designated Securities through the Representatives such Seller expressly for use in any thereoftherein.
b. Each Seller, severally and not jointly, shall be obligated to indemnify IMSC, its directors and officers and each person, if any, who "controls" IMSC within the meaning of the 1933 Act (b) Each Underwriter severally will indemnify each, an "IMSC Affiliate"), from and hold harmless the Company against any and all losses, claims, damages damages, liabilities and expenses (including, without limitation, amounts paid in settlement of any litigation, commenced or liabilities threatened, or claim based upon matters covered by the indemnities provided for in this sentence, and expenses reasonably incurred in defending against any such commenced or threatened litigation or claims), joint or several, to which the Company such IMSC Affiliate may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) subject which arise out of or are based upon an on any untrue statement or alleged untrue statement of a material fact contained in the any Registration Statement, the Base Prospectusprospectus or other document incidental to any registration, qualification or compliance (or in any Preliminary Prospectuswritten related registration statement, the Pricing Prospectus notification or the Prospectus, like) required to be filed or furnished by reason of this Agreement or caused by any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance based upon and in conformity with written information furnished in writing to the Company IMSC by such Underwriter through the Representatives a Seller expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) c. Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section of notice of the commencement of any action, such indemnified party shallwill, if a claim in respect thereof is to be made against the an indemnifying party under such subsectionthis Section, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be is brought against any indemnified party and it shall notify the such indemnified party seeks or intends to seek indemnity from an indemnifying party of the commencement thereofhereunder, the indemnifying party shall will be entitled to participate therein in, and, to the extent that it shall may wish, jointly with any all other indemnifying party parties similarly notified, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party (who and the indemnifying party and counsel to the indemnified party shall not, except with have reasonably concluded that there may be a conflict between the consent positions of the indemnifying party and the indemnified party, party in conducting the defense of any such action or that there may be counsel legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party), and, after the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, of such action and approval by the indemnified party of its election so to assume the defense of such action. the indemnifying party shall will not be liable to such indemnified party under such subsection this Section for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs unless (i) the indemnified party shall have employed counsel in connection with the assumption of investigation. The legal defenses in accordance with the provision of the next preceding sentence (it being understood, however, that the indemnifying party under subsection (a) or (b) above shall only not be liable for the legal fees and expenses of more than one separate counsel for all representing the indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (awho are parties to such action) or (bii) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with shall not have employed counsel reasonably satisfactory to the consent indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party.
(d) d. If the indemnification provided for in this Section 9 5 is held by a court of competent jurisdiction to be unavailable to or otherwise insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to thereinherein, then each applicable indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such any losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to herein in such proportion as is appropriate to reflect not only the relative benefits received by fault of the Company indemnifying party on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities indemnified party on the other in connection with the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage, liability or liabilities (or actions in respect thereof), expense as well as any other relevant equitable considerations. The relative benefits received by fault of the Company on indemnifying party and the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault indemnified party 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 omissions to state a material fact relates to information supplied by the Company on indemnifying party or by the one hand or such Underwriters on the other unindemnified party and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Sources: Registration Rights Agreement (International Menu Solutions Corp)
Indemnification and Contribution. (a) The Company will and each Selling Stockholder, jointly and severally, agree to indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwiseotherwise (including in settlement of any litigation if such settlement is effected with the written consent of the Company and/or such Selling Stockholders, as the case may be), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the Base Prospectusinformation deemed to be a part of the Registration Statement at the time of effectiveness pursuant to Rules 430A and 434(d) of the Rules and Regulations, if applicable, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to thereto (including any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to term sheet within the meaning of Rule 433(d) under 434 of the ActRules and Regulations), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter it in connection with investigating or defending any against such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that neither the Company nor any Selling Stockholder shall not be liable in any such case to the extent that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectussupplement, in reliance upon and in conformity with written information furnished to the Company by you, or by any Underwriter of Designated Securities through the Representatives expressly you, specifically for use in the preparation thereof; and further provided, however, that in no event shall any thereofSelling Stockholder be liable under the provisions of this Section 6 for any amount in excess of the aggregate amount of proceeds such Selling Stockholder received from the sale of the Securities pursuant to this Agreement. In addition to their other obligations under this Section 6(a), the Company and each Selling Stockholder, jointly and severally, agree that, as an interim measure during the pendency of any claim, action, investigation, inquiry or other proceeding arising out of or based upon any statement or omission, or any alleged statement or omission, described in this Section 6(a), they will reimburse each Underwriter on a monthly basis for all reasonable legal fees or other expenses incurred in connection with investigating or defending any such claim, action, investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination as to the propriety and enforceability of the Company's and/or the Selling Stockholder's obligation to reimburse the Underwriters for such expenses and the possibility that such payments might later be held to have been improper by a court of competent jurisdiction. To the extent that any such interim reimbursement payment is so held to have been improper, the Underwriter that received such payment shall promptly return it to the party or parties that made such payment, together with interest, compounded daily, determined on the basis of the prime rate (or other commercial lending rate for borrowers of the highest credit standing) announced from time to time by __________________ (the "Prime Rate"). Any such interim reimbursement payments which are not made to an Underwriter within 30 days of a request for reimbursement shall bear interest at the Prime Rate from the date of such request. This indemnity agreement shall be in addition to any liabilities which the Company or the Selling Stockholders may otherwise have.
(b) Each Underwriter Underwriter, severally but not jointly, will indemnify and hold harmless the Company and each Selling Stockholder against any losses, claims, damages or liabilities to which the Company and the Selling Stockholders may become subject, under the Act or otherwiseotherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to thereto (including any thereof, or any Issuer Free Writing Prospectusterm sheet within the meaning of Rule 434 of the Rules and Regulations), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectussuch amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by you, or by such Underwriter through the Representatives expressly you, specifically for use therein; andin the preparation thereof, subject to subsection (c) below, and will reimburse the Company and the Selling Stockholders for any legal or other expenses reasonably incurred by the Company or any such Selling Stockholder in connection with investigating or defending against any such action loss, claim, damage, liability or claim as such expenses are incurredaction.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; , but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which that it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifyparty. In case any such action shall be brought against any indemnified party party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein in, and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, and after notice from the indemnifying party to such indemnified party of its the indemnifying party's election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party ; provided, however, that if, in the sole judgment of the Underwriters, it is advisable for the Underwriters to be represented as a group by separate counsel, the Underwriters shall have the right to employ a single counsel to represent all Underwriters who may be subject to liability arising from any claim in respect of which indemnity may be sought by the Underwriters under subsection (a) or (b) above shall only be liable for of this Section 6, in which event the legal reasonable fees and expenses of one such separate counsel for all indemnified shall be borne by the indemnifying party or parties and reimbursed to the Underwriters as incurred (in each jurisdiction accordance with the provisions of the second paragraph in which any claim or action is brought. An indemnified party under subsection (a) or (b) above above). An indemnifying party shall not enter into a be obligated under any settlement of agreement relating to any litigation action under this Section 6 to which it has not agreed in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying partywriting.
(d) If the indemnification provided for in this Section 9 6 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities referred to in subsection (a) or actions (b) above, (i) in respect thereofsuch proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Stockholders on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative fault of the Company and the Selling Stockholders on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof)liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Stockholders on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company and Selling Stockholders bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company on Company, the one hand Selling Stockholders or such the Underwriters on the other and the parties’ relative ' relevant intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company Company, the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) were to be determined by pro rata allocation (even if the Underwriters 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 the first sentence of this subsection (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 the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any such action or claimclaim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company and the Selling Stockholders under this Section 9 6 shall be in addition to any liability which the Company and the Selling Stockholders may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 6 shall be in addition to any liability which that the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with such person's consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company or any Selling Stockholder within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages damages, liabilities or liabilitiesexpenses, joint or severalas and when incurred, to which such Underwriter may become subject, joint or several, under the 1933 Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) ), arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the 1933 Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will promptly reimburse each such Underwriter for any legal or other reasonable expenses reasonably (including reasonable fees and expenses for no more than one law firm for the Underwriters) when and as incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurredclaim; provided, however, that the Company shall not be liable in any such case to an Underwriter to the extent that any such loss, claim, damage damage, liability or liability expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereoftherein.
(b) Each Underwriter Underwriter, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages damages, liabilities or liabilities expenses to which the Company may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such any Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company for any legal or other reasonable expenses reasonably (including reasonable fees and expenses for no more than one law firm for the Company) when and as incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredclaim.
(c) Promptly after receipt by an indemnified party under subsection (aSection 9(a) or (b9(b) above hereof of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionSection 9(a) or 9(b) hereof, notify the such indemnifying party in writing of the commencement thereof; , but the omission so to notify the such indemnifying party shall not relieve the such indemnifying party from any liability which except to the extent that it has been prejudiced in any material respect by such failure or from any liability that it may have to any such indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifySection 9(a) or 9(b) hereof. In case any such action shall be brought against any such indemnified party and it shall notify the such indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party under Section 9(a) or 9(b) hereof similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the such indemnified party, be counsel to the such indemnifying party), and, after notice from the such indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under such subsection Section 9(a) or 9(b) hereof for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in any such action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party under subsection shall bear the reasonable fees, costs and expenses of such separate counsel if (ai) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of any such action; or (biv) above the indemnifying party shall only be liable for authorize the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or (b) above shall not enter into a settlement compromise of, or consent to the entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 9(a) or (b9(b) above hereof in respect of any losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) referred to therein, then each indemnifying party under Section 9(a) or 9(b) hereof shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under Section 9(c) hereof, then each such loss, claim, damage indemnifying party shall contribute to such amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other hand 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 omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (dSection 9(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (dSection 9(d). The amount paid or payable by such an indemnified party as a result of the losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) referred to above in this subsection (dSection 9(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 subsection (dSection 9(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it such Underwriter and distributed to the public were offered to the public exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations of the Underwriters of Designated Securities in this subsection (dSection 9(d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which that the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter officer, director, employee, agent or other representative and to each person, if any, who controls any each Underwriter within the meaning of the Act, 1933 Act or the 1934 Act and each broker-dealer affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which that the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company officer, director, employee, agent or other representative and to each person, if any, who controls the Company within the meaning of the Act1933 Act or the ▇▇▇▇ ▇▇▇.
Appears in 1 contract
Sources: Underwriting Agreement (Ameren Corp)
Indemnification and Contribution. (a) The Company will agrees to indemnify and hold harmless each Underwriter Holder (for purposes of this Section 7, "Holder" shall include the officers, directors, partners, employees and agents, and each Person, if any, who controls any Holder ("controlling person") within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, from and against any and all losses, claims, damages damages, expenses or liabilities, joint or severalseveral (and actions, proceedings, suits and litigation in respect thereof), whatsoever, as the same are incurred, to which such Underwriter Holder or any such controlling Person may become subject, under the Securities Act, the Exchange Act or otherwise, any other statute or at common law or otherwise insofar as such losses, claims, damages damages, expenses or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement, the Base Prospectus, or any Preliminary Prospectus, the Pricing preliminary Prospectus or the Prospectus, any amendment or supplement Prospectus (as from time to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(dtime amended and supplemented) under the Act, or arise out of or are based upon the omission or alleged omission to state therein therefrom of a material fact required to be stated therein or necessary to make the statements therein (with respect to any preliminary Prospectus or Prospectus, in the light of the circumstances under which they were made), not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage damage, expense or liability arises out of or is based upon an any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, or any Preliminary Prospectus, the Pricing preliminary Prospectus or the Prospectus, Prospectus or any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter of Designated Securities through the Representatives expressly such Holder specifically for use in any thereof.
(b) Each Underwriter severally will indemnify inclusion therein and hold harmless provided, further, that the Company against shall not be liable to any losses, claims, damages or liabilities to which the Company may become subject, such Holder under the Act or otherwise, insofar as such losses, claims, damages or liabilities indemnity agreement in this subsection (or actions in a) (i) with respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, to any Preliminary Prospectus, the Pricing preliminary Prospectus or the Prospectus, any amendment Prospectus (if such Prospectus has then been amended or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only supplemented) to the extent that any such loss, liability, claim, damage or expense of such Holder arises out of a sale of Transfer Restricted Securities by such Holder to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus (or of the Prospectus as then amended or supplemented) if the Company has previously furnished copies thereof to such Holder a reasonable time in advance and the loss, liability, claim, damage or expense of such Holder results from an untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in the preliminary Prospectus (or the Prospectus) which was corrected in the Prospectus (or the Prospectus as amended or supplemented) or (ii) to the extent that any such loss, claim, damage, expense or liability arises out of or is based upon any action or failure to act by such Holder that is found in a final judicial determination (or a settlement tantamount thereto) to constitute bad faith, willful misconduct or gross negligence on the part of such Holder. The indemnity agreement in this subsection (a) shall be in addition to any liability which the Company may have at common law or otherwise. The Company also agrees to indemnify or contribute to losses of, as provided in Section 7(d), any underwriters of Transfer Restricted Securities registered under the Shelf Registration Statement, their officers and directors and each Person, if any, who controls any such underwriter (within the meaning of the Act) on substantially the same basis as that of the indemnification of the Holders provided in this Section 7(a) and shall, if requested by any Holder, enter into an underwriting agreement reflecting such agreement, as provided in Section 5(o) hereof.
(b) Each Holder agrees to indemnify and hold harmless the Company, each of its directors, each of its officers and each other Person, if any, who controls the Company within the meaning of the Securities Act, to the same extent as the foregoing indemnity from the Company to the Holders, but only with respect to statements or omissions, if any, made in conformity with information relating to such Holder furnished in writing by such Holder specifically for use in the Shelf Registration Statement in the Registration Statement, the Base Prospectus, or any Preliminary Prospectus, the Pricing preliminary Prospectus or the Prospectus, Prospectus or any amendment thereof or supplement thereto; provided, however, that the obligation to any thereof, or any Issuer Free Writing Prospectus, in reliance upon indemnify will be individual to each Holder and in conformity with written information furnished will be limited to the Company amount of net proceeds received by such Underwriter through Holder from the Representatives expressly for use therein; and, subject sale of Transfer Restricted Securities pursuant to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredShelf Registration Statement.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 7 of notice of the commencement of any action, suit or proceeding, such indemnified party shall, if a claim in respect thereof is to be made against the one or more indemnifying party parties under such subsectionthis Section 7, notify the indemnifying each party against whom indemnification is to be sought in writing of the commencement thereof; thereof (but the omission so failure to notify the an indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection Sections 7(a) or (b) unless and only to the extent such indemnifying party that it has been prejudiced in a material respect by such omission so to notifyfailure or from the forfeiture of substantial rights and defenses). In case any such action shall be action, suit or proceeding is brought against any indemnified party party, and it shall notify the notifies an indemnifying party or parties of the commencement thereof, the indemnifying party shall or parties will be entitled to participate therein andtherein, and to the extent that it shall wish, jointly with any other indemnifying may elect by written notice delivered to the indemnified party similarly notifiedpromptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party, which may be the same counsel as counsel to the indemnifying party. Notwithstanding the foregoing, the indemnified party or parties shall have the right to employ its or their own counsel in any such case but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying parties in connection with the defense of such action at the expense of the indemnifying party, (ii) the indemnifying parties shall not have employed counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent to take charge of the defense of such action within a reasonable time after notice of commencement of the action or (iii) such indemnified party, be counsel to the indemnifying party), andparty or parties shall have reasonably concluded, after notice from the indemnifying party consultation with counsel to such indemnified party or parties, that a conflict of its election so interest exists which makes representation by counsel chosen by the indemnifying party not advisable (in which case the indemnifying parties shall not have the right to assume direct the defense thereofof such action on behalf of the indemnified party or parties), in any of which events such fees and expenses of one additional counsel shall be borne by the indemnifying parties. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Anything in this Section 7 to the contrary notwithstanding, an indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses settlement of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying partywithout its written consent.
(d) If the indemnification provided In order to provide for just and equitable contribution in this Section 9 is unavailable to or insufficient to hold harmless any case in which (i) an indemnified party under subsection makes claim for indemnification pursuant to this Section 7, but it is judicially determined (aby the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of this Section 7 provide for indemnification in such case, or (bii) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereincontribution under the Securities Act may be required, then each indemnifying party party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages damages, expenses or liabilities (or actions actions, suits, proceedings or litigation in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of each of the Company contributing parties, on the one hand hand, and the Underwriters of the Designated Securities party to be indemnified, on the other hand, in connection with the statements or omissions which that resulted in such losses, claims, damages damages, expenses or liabilities (or actions in respect thereof)liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. The relative 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 omissions omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other by a Holder, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages damages, expenses or liabilities (or actions actions, suits, proceedings or litigation in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing or defending any such action action, claim, suit, proceeding or claimlitigation. Notwithstanding the provisions of this subsection (d), no Underwriter Holder shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Transfer Restricted Securities underwritten sold by it such indemnifying party and distributed to the public were offered to the public exceeds the amount of any damages which that such Underwriter indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f12(f) of the Securities Act) shall be entitled to contribution from any person Person who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend7, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each personPerson, if any, who controls the Company within the meaning of the Securities Act, each executive officer of the Company and each director of the Company shall have the same rights to contribution as the Company, subject in each case to this subsection (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit, proceeding or litigation against such party in respect to which a claim for contribution may be made against another party or parties under this subsection (d), notify such party or parties from whom contribution may be sought, but the omission so to notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have hereunder or otherwise than under this subsection (d), or to the extent that such party or parties were not adversely affected by such omission. The contribution agreement set forth above shall be in addition to any liabilities which any indemnifying party may have at common law or otherwise.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will shall indemnify and hold harmless each the Underwriter against any lossesloss, claimsclaim, damages damage or liabilitiesliability (or any action in respect thereof), joint or several, to which such the Underwriter may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage or liabilities liability (or actions action in respect thereof) arise arises out of or are is based upon an (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, Registration Statement as amended or supplemented or in any amendment Blue Sky application or supplement other document executed by the Company specifically for that purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) all of the Shares under the Actsecurities laws thereof (any such application, document or arise out of or are based upon information being hereinafter referred to as a "Blue Sky Application"), (ii) the omission or alleged omission to state therein in the Registration Statement, any Preliminary Prospectus, the Prospectus or the Registration Statement as amended or supplemented or in any Blue Sky Application a material fact required to be stated therein or necessary to make the statements therein not misleading; or (iii) a breach of a representation warranty, and, subject to subsection (c) below, will or covenant made by the Company herein; and shall reimburse each the Underwriter promptly after receipt of invoices from the Underwriter for any legal or other expenses as may reasonably be incurred by such the Underwriter in connection with investigating investigating, preparing to defend or defending against or appearing as a third-party witness in connection with any such action loss, claim, damage, liability or claim as action, notwithstanding the possibility that payments for such expenses are incurredmight later be held to be improper, in which case such payments shall be promptly refunded; provided, however, that the Company shall not be liable under this paragraph 6(a) in any such case to the extent extent, but only to the extent, that any such loss, claim, damage damage, liability or liability action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.with
Appears in 1 contract
Sources: Underwriting Agreement (Allied Capital Lending Corp)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless the Underwriter, the Forward Seller, the Forward Purchaser and each Underwriter agent of the Underwriter, the Forward Seller, the Forward Purchaser against any losses, claims, damages damages, liabilities or liabilitiesexpenses, as and when incurred, to which the Underwriter, the Forward Seller or the Forward Purchaser or any or all of them may become subject, joint or several, to which such Underwriter may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) ), arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the 1933 Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, andand will promptly reimburse the Underwriter, subject to subsection (c) below, will reimburse each Underwriter the Forward Seller and the Forward Purchaser for any legal or other reasonable expenses reasonably (including reasonable fees and expenses for no more than one law firm for each of (i) the Underwriter and (ii) the Forward Seller and the Forward Purchaser) when and as incurred by such the Underwriter and the Forward Seller and the Forward Purchaser in connection with investigating or defending any such action or claim as such expenses are incurredclaim; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage damage, liability or liability expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives Underwriter, the Forward Seller or the Forward Purchaser, as applicable, expressly for use in any thereoftherein.
(b) Each The Underwriter severally will indemnify and hold harmless the Company Company, the Forward Seller and the Forward Purchaser against any losses, claims, damages damages, liabilities or liabilities expenses to which the Company they may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such the Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company Company, the Forward Seller and the Forward Purchaser for any legal or other reasonable expenses reasonably (including reasonable fees and expenses for no more than one law firm for each of (i) the Company and (ii) the Forward Seller and the Forward Purchaser) when and as incurred by the Company Company, the Forward Seller and the Forward Purchaser in connection with investigating or defending any such action or claim as such expenses are incurredclaim.
(c) Promptly after receipt by an indemnified party under subsection (aSection 9(a) or (b9(b) above hereof of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionSection 9(a) or 9(b) hereof, notify the such indemnifying party in writing of the commencement thereof; , but the omission so to notify the such indemnifying party shall not relieve the such indemnifying party from any liability which except to the extent that it has been prejudiced in any material respect by such failure or from any liability that it may have to any such indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifySection 9(a) or 9(b) hereof. In case any such action shall be brought against any such indemnified party and it shall notify the such indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party under Section 9(a) or 9(b) hereof similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the such indemnified party, be counsel to the such indemnifying party), and, after notice from the such indemnifying party to such indemnified party of its election so to assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under such subsection Section 9(a) or 9(b) hereof for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in any such action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party under subsection shall bear the reasonable fees, costs and expenses of such separate counsel if (ai) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of any such action; or (biv) above the indemnifying party shall only be liable for authorize the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or (b) above shall not enter into a settlement compromise of, or consent to the entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 9(a) or (b9(b) above hereof in respect of any losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) referred to therein, then each indemnifying party under Section 9(a) or 9(b) hereof shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) in such proportion as is appropriate to reflect not only the relative benefits received by each of the Company on Company, the one hand Underwriter and the Underwriters of Forward Seller, as the Designated Securities on the other case may be, from the offering of the Designated Securities Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under Section 9(c) hereof, then each such loss, claim, damage indemnifying party shall contribute to such amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of each of the Company on Company, the one hand Underwriter and the Underwriters of Forward Seller, as the Designated Securities on the other case may be, in connection with the statements or omissions which that resulted in such losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on Company, the one hand Underwriter, and such Underwriters on the other Forward Seller shall be deemed to be in the same proportion relative proportions as the total net proceeds from such offering (before deducting expenses) received by the Company bear (which proceeds shall include the proceeds to be received by the Company pursuant to the Forward Sale Agreement assuming Physical Settlement (as such term is defined in the Forward Sale Agreement) of the Forward Sale Agreement on the Effective Date (as such term is defined in the Forward Sale Agreement)), the total underwriting discounts and commissions received by the Underwriter, and the aggregate Spread (as defined in the Forward Sale Agreement) received by the Forward Purchaser under the Forward Sale Agreement, net of any costs associated therewith, as reasonably determined by the Forward Seller, in each case, bear to the aggregate offering price of the Securities, plus such Underwritersaggregate Spread (net of such costs). The relative fault each of the Company, the Underwriter, and the Forward Seller, as the case may be, 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 omissions omission to state a material fact relates to information supplied by the Company on indemnifying party or by the one hand or indemnified party and such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Company, the Underwriter, the Forward Seller and the Underwriters Forward Purchaser agree that it would not be just and equitable if contribution pursuant to this subsection (dSection 9(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (dSection 9(d). The amount paid or payable by such an indemnified party as a result of the losses, claims, damages damages, liabilities or liabilities expenses (or actions in respect thereof) referred to above in this subsection (dSection 9(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 subsection (dSection 9(d), no (x) the Underwriter shall not be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it the Underwriter and distributed to the public were offered to the public exceeds the amount of any damages that the Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and (y) the Forward Seller shall not be required to contribute any amount in excess of the amount by which such Underwriter the aggregate Spread (as defined in the Forward Sale Agreement) received by the Forward Purchaser under the Forward Sale Agreement exceeds the amount of any damages that the Forward Seller has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which that the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter officer, director, employee, agent or other representative and to each person, if any, who controls any Underwriter the Underwriter, the Forward Seller or the Forward Purchaser, within the meaning of the Act1933 Act or the 1934 Act and each broker-dealer affiliate of the Underwriter, the Forward Seller or the Forward Purchaser; and the obligations of the Underwriters Underwriter or the Forward Seller under this Section 9 shall be in addition to any liability which that the respective Underwriters Underwriter or the Forward Seller may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company officer, director, employee, agent or other representative and to each person, if any, who controls the Company within the meaning of the Act1933 Act or the ▇▇▇▇ ▇▇▇.
Appears in 1 contract
Sources: Underwriting Agreement (Ameren Corp)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter the Placement Agent, its affiliates and any person acting on its behalf against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (the “Covered Claims”), to which the Placement Agent may become subject, insofar as such Covered Claims arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofConfidential Memorandum, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d(ii) under the Act, or arise out of or are based upon the omission or alleged omission to state therein in the Confidential Memorandum a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and, subject to subsection (c) below, . The Company will reimburse each Underwriter the Placement Agent for any legal or other expenses reasonably incurred by such Underwriter the Placement Agent in connection with investigating or defending any such action or claim as such expenses are incurred; providedCovered Claims. Notwithstanding the foregoing, however, that the Company shall not be liable to or indemnify or reimburse the Placement Agent in any such case to the extent that any such loss, claim, damage or liability arises Covered Claims arise out of or is are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, Confidential Memorandum in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives Placement Agent expressly for use therein. The Company acknowledges and agrees that as of the date hereof the Placement Agent has not provided any information in any thereofconnection with the Confidential Memorandum.
(b) Each Underwriter severally The Placement Agent will indemnify and hold harmless the Company Company, its affiliates and any person acting on its behalf against any losses, claims, damages or liabilities Covered Claims to which the Company may become subject, under the Act or otherwise, subject insofar as such losses, claims, damages or liabilities (or actions in respect thereof) Covered Claims arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereofConfidential Memorandum, or any Issuer Free Writing Prospectus, or arise out of or are based upon (ii) the omission or alleged omission to state therein in the Confidential Memorandum a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, Confidential Memorandum in reliance upon and in conformity with the written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject Placement Agent referred to in subsection (ca) below, above; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredCovered Claims.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission to so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be is brought against any indemnified party and it shall notify such indemnified party notifies the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such indemnified party of its the indemnifying party’s election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 10 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of to any losses, claims, damages or liabilities (or actions in respect thereof) Covered Claims referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified indemnifying party as a result of such lossesCovered Claims in such proportion as is appropriate to reflect the relative benefits received by the Company and the Placement Agent from the offering of the Shares. If, claimshowever, damages the allocation provided by the immediately preceding sentence is not permitted by applicable law or liabilities if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or actions in respect thereof) payable by such indemnified party in such proportion as is appropriate to reflect not only the such relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other Placement Agent in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)Covered Claims, as well as any other relevant equitable considerations. The relative benefits received by the Company on and the one hand and such Underwriters on the other Placement Agent shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company bear relative to the value of total underwriting discounts and commissions compensation, if any, received by such Underwritersthe Placement Agent in selling the Shares under this Agreement. 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 omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on the other Placement Agent and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters Placement Agent agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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) Covered Claims referred to above in this subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not jointCovered Claims.
(e) The obligations of the Company under this Section 9 10 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter the Placement Agent within the meaning of the Securities Act, to affiliates of the Placement Agent and to any person acting on behalf of any such persons; and the obligations of the Underwriters Placement Agent under this Section 9 10 shall be in addition to any liability which the respective Underwriters Placement Agent may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act.
(f) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 10 shall not be construed so as to provide for the indemnification of any indemnified party for any liability for a Covered Claim (including liability under federal securities laws which, under certain circumstances, impose liability on persons that act in good faith) to the extent (but only to the extent) that such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the provisions of this Section 10 to the fullest extent permitted by law.
(g) It is understood, however, that nothing in this Section 10 shall protect any indemnified party against, or entitle any indemnified party to indemnification against, or contribution with respect to, any liability to the Company or its Stockholders to which such indemnified party is subject, by reason of its willful misfeasance, bad faith or gross negligence in the performance of its duties, or by reason of any reckless disregard of its obligations and duties, under this Agreement, or otherwise to an extent or in a manner that is inconsistent with Section 17(i) of the 1940 Act.
Appears in 1 contract
Sources: Placement Agent Agreement (Muzinich Corporate Lending Income Fund, Inc.)
Indemnification and Contribution. (a) The Company will Issuer shall indemnify and hold harmless each Underwriter Holder, such Holder’s directors, officers, employees, representatives, agents and each person, if any, who controls such Holder within the meaning of Section 15 of the Securities Act (each, an “Indemnified Holder”), from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to resales of the Registrable Securities), to which such Underwriter Indemnified Holder may become subject, under the Securities Act or otherwise, insofar as any such lossesloss, claimsclaim, damages damage, liability or liabilities action arises out of, or is based upon:
(or actions in respect thereofi) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Statement or Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(dthereto; or
(ii) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a in the Shelf Registration Statement any material fact required to be stated therein or necessary to make the statements therein not misleading, andor the omission or alleged omission to state in the Prospectus any material fact required to be stated therein or necessary to make the statements therein, subject to subsection (c) belowin the light of the circumstances under which they were made, will not misleading; and shall reimburse each Underwriter Indemnified Holder promptly upon demand for any legal or other expenses expenses, subject to Section 6(c) below, reasonably incurred by such Underwriter Indemnified Holder in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action or claim as such expenses are incurred; provided, however, that the Company Issuer shall not be liable in any such case to the extent that any such loss, claim, damage damage, liability or liability action arises out of of, or is based upon an upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Shelf Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Statement or Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, thereto in reliance upon and in conformity with written information furnished to the Company Issuer by or on behalf of any Underwriter of Designated Securities through the Representatives expressly Holder (or its related Indemnified Holder) specifically for use in therein; provided, further, that as to any thereof.
preliminary Prospectus, this indemnity agreement shall not inure to the benefit of any Indemnified Holder or any officer, employee, representative, agent, director or controlling person of that Indemnified Holder on account of any loss, claim, damage, liability or action arising from the sale of the Registrable Securities sold pursuant to the Shelf Registration Statement to any person by such Indemnified Holder if (bi) Each Underwriter severally will indemnify that Indemnified Holder failed to send or give a copy of the Prospectus, as the same may be amended or supplemented, to that person within the time required by the Securities Act and hold harmless (ii) the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact in such preliminary Prospectus was corrected in the Prospectus or a supplement or amendment thereto, as the case may be, unless in each case, such failure resulted from noncompliance by the Issuer with Section 4. The foregoing indemnity agreement is in addition to any liability that the Issuer may otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold harmless the Issuer, its directors, officers, employees, representatives, agents and each person, if any, who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Issuer or any such officer, employee, representative, agent or controlling person may become subject, insofar as any such loss, claim, damage or liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any material fact contained in the Shelf Registration Statement or Prospectus or any amendment or supplement thereto; or
(ii) the omission or the alleged omission to state in the Shelf Registration Statement any material fact required to be stated therein or necessary to make the statements therein not misleading, or the omission or alleged omission to state in the Prospectus any 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, but in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company Issuer by or on behalf of such Underwriter through the Representatives expressly Holder (or its related Indemnified Holder) specifically for use therein; and, subject to subsection (c) below, will and shall reimburse the Company Issuer and any such director, officer, employee, representative, agent or controlling person promptly upon demand for any legal or other expenses expenses, subject to Section 6(c) below, reasonably incurred by the Company Issuer and any such director, officer, employee, representative, agent or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action or claim as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability that any Holder may otherwise have to the Issuer and any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 6 of notice of any claim or the commencement of any action, such the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 6, notify the indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission so failure to notify the indemnifying party shall not relieve it from any liability that it may have under this Section 6 except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability which that it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 6. In case If any such claim or action shall be brought against any an indemnified party party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the indemnifying party shall not be liable to such the indemnified party under such subsection this Section 6 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The ; provided, however, that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and its respective directors, employees, officers and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the indemnified party against the indemnifying party under subsection (a) this Section 6 if such indemnified party shall have been advised in writing that the representation of such indemnified party and those directors, employees, officers and controlling persons by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or (b) above potential differing interests between them, and in that event the fees and expenses of such separate counsel shall only be paid by the indemnifying party. It is understood that the indemnifying party shall not be liable for the legal fees and expenses of more than one separate firm (in addition to local counsel in each jurisdiction) for all indemnified parties in each jurisdiction connection with any proceeding or related proceedings. Each indemnified party, as a condition of the indemnity agreements contained in Sections 6(a) and 6(b), shall use its reasonable best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall:
(i) without the prior written consent of the indemnified parties (which any claim or action is brought. An indemnified party under subsection (a) or (b) above consent shall not enter into a be unreasonably withheld) effect any settlement of any litigation pending or threatened action in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of such indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a claim is statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party, or
(ii) be made against liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such action, the indemnifying party under such subsection unless agrees to indemnify and hold harmless any indemnified party from and against any loss of liability by reason of such settlement is effected or judgment in accordance with the consent of the indemnifying partythis Section 6.
(d) If the indemnification provided for in this Section 9 6 is unavailable to or insufficient to hold harmless an indemnified party under subsection subsections (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to thereinabove, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such the losses, claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the registration of the Registrable Securities pursuant to the Shelf Registration, or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities referred to which such loss, claim, damage or liability in clause (or action in respect thereofi) relates above but also the relative fault of the Company indemnifying party or parties on the one hand and the Underwriters of the Designated Securities indemnified party on the other in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), ) as well as any other relevant equitable considerations. The relative benefits received by fault of the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault parties 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 omissions omission to state a material fact relates to information supplied by the Company Issuer on the one hand or such Underwriters Holder or such other indemnified party, as the case may be, on the other other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 the first sentence of this subsection (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 claim which is the provisions subject of this subsection (d). Notwithstanding any other provision of this Section 6(d), no Underwriter the Holders of the Registrable Securities shall not be required to contribute any amount in excess of the amount by which the total price at which gross proceeds received by such Holders from the applicable Designated sale of the Registrable Securities underwritten by it and distributed pursuant to the public were offered to the public Shelf Registration Statement exceeds the amount of any damages which such Underwriter has Holders have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person 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 obligations For purposes of the Underwriters of Designated Securities in this subsection paragraph (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend), upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter such indemnified party within the meaning of the Act, and Securities Act or the obligations of the Underwriters under this Section 9 Exchange Act shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms rights to contribution as such indemnified party and conditions, to each officer and director of the Company and to each person, if any, who controls the Company Issuer within the meaning of the ActSecurities Act or the Exchange Act shall have the same rights to contribution as the Issuer.
(e) The indemnity and contribution provisions contained in this Section 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Initial Purchaser, any Holder or any person controlling any Initial Purchaser or any Holder, or by or on behalf of the Issuer, its officers or directors or any person controlling the Issuer, and (iii) any sale of Registrable Securities pursuant to the Shelf Registration Statement.
Appears in 1 contract
Sources: Registration Rights Agreement (Zenith National Insurance Corp)
Indemnification and Contribution. (a) The Company will Guarantor and the Trust will, jointly and severally, indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that neither the Company Guarantor nor the Trust shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company Guarantor or the Trust by any Underwriter of Designated Securities through the Representatives expressly for use in any thereoftherein.
(b) Each Underwriter severally will indemnify and hold harmless each of the Company Guarantor and the Trust against any losses, claims, damages or liabilities to which the Company Guarantor or the Trust may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any such amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company Guarantor or the Trust by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company Guarantor or the Trust for any legal or other expenses reasonably incurred by the Company Guarantor or the Trust, as appropriate, in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company Guarantor and the Trust on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Trust Preferred Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company Guarantor or the Trust on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company Guarantor or the Trust on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company Guarantor or the Trust bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company Guarantor or the Trust on the one hand or such the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Guarantor and the Trust on the one hand and the Underwriters on the other agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Trust Preferred Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 7 shall be in addition to any liability which the Company Guarantor or the Trust may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 7 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company Guarantor and the Trust and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will indemnify shall indemnify, defend and hold harmless each Underwriter and each person who controls any Underwriter within the meaning of Section 15 of the Securities Act from and against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law and shall reimburse each such Underwriter may become subjectand controlling person for any legal or other expenses (including, under to the Act extent hereinafter provided, reasonable counsel fees) incurred by them in connection with investigating any such losses, claims, damages or otherwiseliabilities or in connection with defending any actions, insofar as such losses, claims, damages or liabilities (damages, liabilities, expenses or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a preliminary prospectus relating to the Bonds, or in the Basic Prospectus (if used prior to the date the Prospectus is filed with the Commission pursuant to Rule 424), or in the Registration Statement or the Prospectus, as amended or supplemented (if any amendments or supplements thereto shall have been furnished), or in the Company's latest available Annual Report to Shareholders, to the extent portions thereof are incorporated by reference, directly or indirectly, in a preliminary prospectus relating to the Bonds, or in the Basic Prospectus (if used prior to the date the Prospectus is filed with the Commission pursuant to Rule 424), or in the Registration Statement or the Prospectus, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading; provided, however, that the indemnity agreement contained in this Section 10(a) shall not apply to any such losses, claims, damages, liabilities, expenses or actions arising out of, or based upon, any such untrue statement or alleged untrue statement, or any such omission or alleged omission, if such statement or omission was made in reliance upon and in conformity with written information furnished to the Company by or through the Representative on behalf of any Underwriter for use in connection with the preparation of the Registration Statement or the Prospectus or any amendment or supplement to either thereof, or arising out of, or based upon, statements in or omissions from that part of the Registration Statement that shall constitute the Statement of Eligibility on Form T-1 under the Trust Indenture Act of the trustee under the Mortgage; provided further, however, that the indemnity agreement contained in this Section 10(a) shall not inure to the benefit of any Underwriter or of any person controlling any Underwriter on account of any such losses, claims, damages, liabilities, expenses or actions arising from the sale of Bonds to any person if there shall not have been given or sent to such person on behalf of such Underwriter (i) with or prior to the written confirmation of the sale to such person, a copy of the Prospectus as then amended or supplemented (exclusive for this purpose of any amendment or supplement relating to any offering of First Mortgage Bonds that are not included in the Bonds and of any document incorporated by reference pursuant to Item 12 of Form S-3 under the Securities Act), unless the failure to so give or send resulted from the Company's failure to comply with Section 7(b) hereof, and (ii) as soon as available after such written confirmation, a copy of any amendment or supplement to the Prospectus (exclusive for this purpose of any document incorporated by reference pursuant to Item 12 of Form S-3 under the Securities Act) that the Company shall thereafter furnish, pursuant to Section 7(d) hereof, relating to an event occurring prior to the payment for and delivery to such person of the Bonds involved in such sale. The indemnity agreement of the Company contained in this section and the representations and warranties of the Company contained in Section 4 hereof shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any such controlling person and shall survive the delivery of the Bonds.
(b) Each Underwriter shall indemnify, defend and hold harmless the Company, its directors and officers, and each person who controls any of the foregoing within the meaning of Section 15 of the Securities Act, from and against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act or any other statute or common law and shall reimburse each of them for any legal or other expenses (including, to the extent hereinafter provided, reasonable counsel fees) incurred by them in connection with investigating any such losses, claims, damages or liabilities or in connection with defending any action, insofar as such losses, claims, damages, liabilities, expenses or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus Statement or the Prospectus, as amended or supplemented (if any amendment amendments or supplement to any thereofsupplements thereto shall have been furnished), or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by if such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities or through the Representatives expressly Representative on behalf of such Underwriter for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless connection with the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out preparation of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, Statement or the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to either thereof. The indemnity agreement of the respective Underwriters contained in this Section 10(b) shall remain operative and in full force and effect regardless of any thereofinvestigation made by or on behalf of the Company, its directors or officers, any such Underwriter, or any Issuer Free Writing Prospectussuch controlling person, or arise out and shall survive the delivery of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurredBonds.
(c) Promptly after The Company and the several Underwriters each shall, upon the receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any actionaction against it or any person controlling it as aforesaid, such indemnified party shall, if a claim in respect thereof is to of which indemnity may be made against the indemnifying party under such subsectionsought on account of any indemnity agreement contained herein, notify the indemnifying party in writing promptly give written notice of the commencement thereof; thereof to the party or parties against whom indemnity shall be sought hereunder, but the omission so to notify the indemnifying party or parties of any such action shall not relieve the such indemnifying party or parties from any liability which that it or they may have to the indemnified party under such indemnity agreement except to the extent that it has or they have been prejudiced in any material respect by such omission or from any liability that it or they may have to such indemnified party otherwise than under on account of such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifyindemnity agreement. In case such notice of any such action shall be brought against so given, any indemnified party and it shall notify the indemnifying party of the commencement thereof, the such indemnifying party shall be entitled to participate therein andat its own expense in the defense or, if it so elects, to the extent that it shall wish, jointly assume (in conjunction with any of such other indemnifying parties) the defense of such action, in which event such defense shall be conducted by counsel chosen by such indemnifying party similarly notifiedor parties and satisfactory to the indemnified party or parties, in its or their reasonable judgment, who shall be defendant or defendants in such action, and such indemnified party or parties shall bear the fees and expenses of any additional counsel retained by it or them; provided, however, that if any such indemnifying party shall elect not to assume the defense thereofof such action, with such indemnifying party will reimburse such indemnified party or parties for the reasonable fees and expenses of any counsel retained by such indemnified party or parties; provided further, however, that if the defendants in any such action include both such indemnifying party or parties and such indemnified party or parties, then, at the request of such indemnified party or parties, such indemnifying and indemnified party or parties shall mutually select special counsel (whose fees and disbursements shall be shared equally by such indemnifying and indemnified party or parties) for the sole purpose of determining if a conflict of interest is or may be involved if the same counsel were to represent both such indemnifying party or parties and such indemnified party or parties and, if such special counsel determines that such a conflict does or may exist, such indemnified party or parties shall have the right to select separate counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party or parties to participate in the defense of such action on behalf of such indemnified party of its election so to assume the defense thereofor parties (it being understood, the however, that such indemnifying party or parties shall not be liable to for the expenses of more than one separate counsel representing such indemnified party under or parties who are parties to such subsection for action plus any legal expenses of other local counsel or any other expenses, in each case subsequently incurred retained by such indemnified partyparty or parties in its or their reasonable judgment). Notwithstanding the foregoing, in connection with the defense thereof other than reasonable costs of investigation. The such indemnifying party under subsection (a) or (b) above parties shall only not be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of action or claim effected without its or their consent, which a claim is to consent shall not be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying partyunreasonably withheld.
(d) If the indemnification provided for in this Section 9 10(a) or (b) hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages or damages, liabilities and expenses incurred by such indemnified party, as incurred, (or actions in respect thereofi) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other hand from the offering of the Designated Securities Bonds pursuant to which this Underwriting Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, or if such lossindemnified party failed to give the notice required under Section 10(c) hereof and such indemnifying party was prejudiced in a material respect by such failure, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other hand in connection with the statements or omissions which that resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other hand in connection with the offering of the Bonds pursuant to this Underwriting Agreement shall be deemed to be in the same proportion respective proportions as the total net proceeds from such the offering of the Bonds pursuant to his Underwriting Agreement (before deducting expenses) received by the Company and the total underwriting commission received by the Underwriters, in each case as set forth on the cover of the Prospectus Supplement, bear to the total underwriting discounts and commissions received by aggregate initial public offering price of the Bonds as set forth on such Underwriterscover. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the any such untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on or by the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (dSection 10(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this subsection (dSection 10(d). The aggregate amount paid or payable of losses, claims, damages, liabilities and expenses incurred by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) and referred to above in this subsection (dSection 10(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such action untrue or claimalleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this subsection (dSection 10(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Bonds underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which that such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. No person 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 obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend10(d), upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any an Underwriter within the meaning of Section 15 of the ActSecurities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company, each officer of the Company who shall have signed the Registration Statement and to each person, if any, who controls the Company within the meaning of Section 15 of the ActSecurities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Indemnification and Contribution. (a) The Company will shall indemnify and hold harmless each Underwriter, its directors, officers, employees, agents and affiliates, and each person, if any, who controls any Underwriter within the meaning of the Securities Act, from and against any lossesloss, claimsclaim, damages damage or liabilitiesliability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Additional Notes), to which such Underwriter that Underwriter, director, officer, employee, agent, affiliate or controlling person may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage, liability or liabilities action arises out of, or is based upon, (or actions in respect thereofi) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base any Issuer Free Writing Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, Prospectus or in any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(dthereto (ii) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a in the Registration Statement, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus, or in any amendment or supplement thereto any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading or (iii) any act or failure to act or any alleged act or failure to act by any Underwriter in connection with, andor relating in any manner to, subject the Additional Notes or the offering contemplated hereby, and which is included as part of or referred to subsection in any loss, claim, damage, liability or action arising out of or based upon matters covered by clause (ci) belowor (ii) above (provided that the Company shall not be liable under this clause (iii) to the extent that it is determined in a final judgment by a court of competent jurisdiction that such loss, will claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Underwriter through its negligence or willful misconduct), and shall reimburse each Underwriter and each such director, officer, employee, agent, affiliate or controlling person promptly upon demand for any legal or other expenses reasonably incurred by such Underwriter that Underwriter, director, officer, employee, agent, affiliate or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage damage, liability or liability action arises out of of, or is based upon an upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base any Issuer Free Writing Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or in any such amendment or supplement to any thereof, or any Issuer Free Writing Prospectussupplement, in reliance upon and in conformity with written information furnished the Underwriters’ Information. The foregoing indemnity agreement is in addition to any liability that the Company by may otherwise have to any Underwriter or to any director, officer, employee, agent, affiliate or controlling person of Designated Securities through the Representatives expressly for use in any thereofthat Underwriter.
(b) Each Underwriter Underwriter, severally will and not jointly, shall indemnify and hold harmless the Company, its directors, officers and employees, and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any lossesloss, claimsclaim, damages damage or liabilities liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such lossesloss, claimsclaim, damages damage, liability or liabilities action arises out of, or is based upon, (or actions in respect thereofi) arise out of or are based upon an any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, any Preliminary Prospectus or arise out of the Prospectus or are based upon in any amendment or supplement thereto or (ii) the omission or alleged omission to state therein a in any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus, or in any amendment or supplement thereto any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case to the extent, but only to the extent that such the untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; andUnderwriters’ Information, subject to subsection (c) below, will and shall reimburse the Company and any such director, officer, employee or controlling person for any legal or other expenses reasonably incurred by the Company or any such director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action or claim as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability that any Underwriter may otherwise have to the Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above this Section 8 of notice of any claim or the commencement of any action, such the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionthis Section 8, notify the indemnifying party in writing of the claim or the commencement thereofof that action; but provided, however, that the omission so failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure; and, provided further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to any an indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifythis Section 8. In case If any such claim or action shall be brought against any an indemnified party party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wishwishes, jointly with any other similarly notified indemnifying party similarly notifiedparty, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after . After notice from the indemnifying party to such the indemnified party of its election so to assume the defense thereofof such claim or action, the indemnifying party shall not be liable to such the indemnified party under such subsection this Section 8 for any legal or other expenses of other counsel or any other expenses, in each case subsequently incurred by such the indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above ; provided, however, that the Representatives shall only have the right to employ counsel to represent jointly the Representatives and those other Underwriters and their respective directors, officers, employees, agents, affiliates and controlling persons who may be liable for the legal expenses subject to liability arising out of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim indemnity may be sought by the Underwriters against the Company under this Section 8 if, in the reasonable judgment of the Representatives, it is advisable for the Representatives and those Underwriters, directors, officers, employees, agents, affiliates and controlling persons to be made against jointly represented by separate counsel, and in that event the fees and expenses of such separate counsel shall be paid by the Company. No indemnifying party under shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such subsection claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement is of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying partyparty or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 is 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under subsection (aSection 8(a) or (b8(b) above in respect of any lossesloss, claimsclaim, damages damage or liabilities (liability, or actions any action in respect thereof) , referred to therein, then each indemnifying party shall shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such lossesloss, claimsclaim, damages damage or liabilities (liability, or actions action in respect thereof, (i) in such proportion as is shall be appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Additional Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to which such loss, claim, damage or liability reflect not only the relative benefits referred to in clause (or action in respect thereofi) relates above but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with respect to the statements or omissions which resulted in such lossesloss, claimsclaim, damages damage or liabilities (liability, or actions action in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such the Underwriters on the other with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from such the offering of the Additional Notes purchased under this Agreement (before deducting expenses) received by the Company bear to Company, on the one hand, and the total underwriting discounts and commissions received by such Underwritersthe Underwriters with respect to the Additional Notes purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the Additional Notes under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, to whether the untrue or alleged untrue statement of a material fact or the omission or alleged omissions omission to state a material fact relates to information supplied by the Company on or the one hand or such Underwriters on Underwriters, the other intent of the parties and the parties’ their relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this subsection (d) Section 8 were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this subsection (d)herein. The amount paid or payable by an indemnified party as a result of the lossesloss, claimsclaim, damages damage or liabilities (liability, or actions action in respect thereof) , referred to above in this subsection (d) Section 8 shall be deemed to include include, for purposes of this Section 8, 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 subsection (d)Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities Additional Notes underwritten by it and distributed to the public were was offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required paid or become liable to pay by reason of such any untrue or alleged untrue statement or omission or alleged omission. No person 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 Underwriters’ obligations of the Underwriters of Designated Securities to contribute as provided in this subsection (d) to contribute Section 8 are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations Underwriters severally confirm and the Company acknowledges that the statements with respect to the public offering of the Company Additional Notes by the Underwriters set forth in the fifth paragraph, the fourth sentence of the seventh paragraph and the eighth, ninth and tenth paragraphs under this Section 9 shall be the caption “Underwriting” in addition the Prospectus Supplement are correct and constitute the only information concerning such Underwriters furnished in writing to any liability which the Company may otherwise have and shall extend, upon through the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations Representatives by or on behalf of the Underwriters under this Section 9 shall be specifically for inclusion in addition to the Pricing Disclosure Package, any liability which Issuer Free Writing Prospectus or the respective Underwriters may otherwise have and shall extend, upon Prospectus (the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act“Underwriters’ Information”).
Appears in 1 contract
Sources: Underwriting Agreement (Humana Inc)
Indemnification and Contribution. (a) The Company will Guarantor and the Trust will, jointly and severally, indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that neither the Company Guarantor nor the Trust shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereofthereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company Guarantor or the Trust by any Underwriter of Designated Securities through the Representatives expressly for use in any thereoftherein.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless each of the Company Guarantor and the Trust against any losses, claims, damages or liabilities to which the Company Guarantor or the Trust may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any such amendment or supplement to any thereof, thereto or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company Guarantor or the Trust by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, and will reimburse the Company Guarantor or the Trust for any legal or other expenses reasonably incurred by the Company Guarantor or the Trust, as appropriate, in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notifysubsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The No indemnifying party under subsection (a) shall, without the written consent of the indemnified party, effect the settlement or (b) above shall only be liable for compromise of, or consent to the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement entry of any litigation judgment with respect to, any pending or threatened action or claim in respect of which a claim indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to be made against the indemnifying party under such subsection action or claim) unless such settlement is effected with the consent settlement, compromise or judgment (i) includes an unconditional release of the indemnifying indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 7 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company Guarantor and the Trust on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities Trust Preferred Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to which give the notice required under subsection (c) above, then each indemnifying party shall contribute to such loss, claim, damage amount paid or liability (or action payable by such indemnified party in respect thereof) relates such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company Guarantor or the Trust on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company Guarantor or the Trust on the one hand and such the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such the offering (before deducting expenses) received by the Company Guarantor or the Trust bear to the total underwriting discounts and commissions received by such the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 omissions omission to state a material fact relates to information supplied by the Company Guarantor or the Trust on the one hand or such the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company Guarantor and the Trust on the one hand and the Underwriters on the other agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Trust Preferred Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company Guarantor under this Section 9 7 shall be in addition to any liability which the Company Guarantor or the Trust may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, ; and the obligations of the Underwriters under this Section 9 7 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company Guarantor and the Trust and to each person, if any, who controls the Company Guarantor within the meaning of the Act.
Appears in 1 contract
Indemnification and Contribution. (a) The In the event of a registration of any of the Restricted Stock under the Securities Act pursuant to Sections 2.3, 2.4 or 2.5, to the extent permitted by law, the Company will indemnify and hold harmless each Underwriter seller thereunder, each underwriter of such Restricted Stock thereunder and each other Person, if any, who controls such seller or underwriter within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter seller, underwriter or controlling Person may become subject, subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Restricted Stock was registered under the Securities Act pursuant to Sections 2.3, 2.4 or 2.5, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or (ii) arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each such seller, each such underwriter and each such controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case if and to the extent that any such loss, claim, damage or liability (A) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by any such seller, any such underwriter or any such controlling Person in writing specifically for use in such registration statement or prospectus or (B) in the case of a sale directly by such holder of Restricted Stock (including a sale of such Restricted Stock through any underwriter retained by such holder of Restricted Stock to engage in a distribution solely on behalf of such holder of Restricted Stock), such untrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus copies of which were delivered to such holder of Restricted Stock or such underwriter on a timely basis, and such holder of Restricted Stock failed to deliver a copy of the final or amended prospectus at or prior to the conformation of the sale of the Restricted Stock to the person asserting any such loss, claim, damage or liability in any case where such delivery is required by the Securities Act.
(b) In the event of a registration of any of the Restricted Stock under the Securities Act pursuant to Sections 2.3, 2.4 or 2.5, to the extent permitted by law, each seller thereunder, severally and not jointly, will indemnify and hold harmless the Company, each Person, if any, who controls the Company within the meaning of the Securities Act, each officer of the Company who signs the registration statement, each director of the Company, each underwriter and each Person who controls any underwriter within the meaning of the Securities Act, against all losses, claims, damages or liabilities, joint or several, to which the Company or such officer, director, underwriter or controlling Person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an any untrue statement or alleged untrue statement of a any material fact contained in the Registration Statementregistration statement under which such Restricted Stock was registered under the Securities Act pursuant to Sections 2.3, the Base Prospectus2.4 or 2.5, any Preliminary Prospectuspreliminary prospectus or final prospectus contained therein, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, and will reimburse the Company and each Underwriter such officer, director, underwriter and controlling Person for any legal or other expenses reasonably incurred by such Underwriter them in connection with investigating or defending any such action loss, claim, damage, liability or claim as such expenses are incurredaction; provided, however, that the Company shall not such seller will be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information pertaining to such seller, as such, furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished writing to the Company by such Underwriter through the Representatives expressly seller specifically for use thereinin such registration statement or prospectus and; andprovided further, subject however, that the liability of each seller hereunder shall be limited to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending proportion of any such action loss, claim, damage, liability or claim as expense which is equal to the proportion that the public offering price of the shares sold by such expenses are incurredseller under such registration statement bears to the total public offering price of all securities sold thereunder, but not in any event exceed the net proceeds received by such seller from the sale of covered by such registration statement.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsectionhereunder, notify the indemnifying party in writing of the commencement thereof; , but the omission so to notify the indemnifying party shall not relieve the indemnifying party it from any liability which it may have to any such indemnified party otherwise other than under this Section 2.8 and shall only relieve it from any liability which it may have to such subsection indemnified party under this Section 2.8 if and only to the extent such the indemnifying party has been is prejudiced by such omission so to notifyomission. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein in and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume and undertake the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection this Section 2.8 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for investigation and of liaison with counsel so selected; provided, however, that, if the legal expenses of one counsel for all indemnified parties defendants in each jurisdiction in which any claim or such action is brought. An include both the indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against and the indemnifying party under such subsection unless such settlement is effected and the indemnified party shall have reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the consent interests of the indemnifying party, the indemnified party shall have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred.
(d) If In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any holder of Restricted Stock exercising rights under this Agreement, or any controlling Person of any such holder, makes a claim for indemnification provided for in pursuant to this Section 9 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 under subsection (athe 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 (bii) above in respect contribution under the Securities Act may be required on the part of any such selling holder or any such controlling Person in circumstances for which indemnification is provided under this Section 2.8; then, and in each such case, the Company and such holder will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (or actions 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 thereofafter contribution from others) in such proportion as so that such holder is appropriate to reflect not only responsible for the relative benefits received portion represented by the Company on percentage that the one hand public offering price of its Restricted Stock offered by the registration statement bears to the public offering price of all securities offered by such registration statement, and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be responsible for the remaining portion; provided, however, that, in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection case, (d), A) no Underwriter shall such holder will be required to contribute any amount in excess of the amount by which the total public offering price at which the applicable Designated Securities underwritten of all such Restricted Stock offered by it pursuant to such registration statement; and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue (B) no Person or alleged untrue statement or omission or alleged omission. No person entity 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 or entity who was not guilty of such fraudulent misrepresentation. The obligations For purposes of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 2.8 only, the term “Restricted Stock” shall be in addition deemed to any liability which the Company may otherwise have and shall extendinclude “Founder Restricted Stock”, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Actas applicable.
Appears in 1 contract
Sources: Investor Rights Agreement (Coley Pharmaceutical Group, Inc.)
Indemnification and Contribution. (ai) The Company will Depositor and FUNB agree to, jointly and severally, indemnify and hold harmless the Underwriters, their directors and each Underwriter person, if any, who controls the Underwriters within the meaning of Section 15 of the Securities Act from and against any and all loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim damage, liability or action relating to purchases and sales of the Offered Certificates), to which the Underwriters, their directors or any such controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (A) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, (B) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (C) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus or (D) the omission or alleged omission to state, in the Prospectus, a material fact required to be stated therein or necessary to make the statements in the Prospectus, in the light of the circumstances under which they were made, not misleading and shall reimburse each Underwriter, each such director and each such controlling person promptly upon demand for any legal or other expenses reasonably incurred by such Underwriter, such director or such controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action, as such expenses are incurred; provided, however, that the Depositor and FUNB shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Prospectus or the Registration Statement in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of any of the Underwriters specifically for inclusion therein (as specified in Section 8(h) below). The foregoing indemnity agreement is in addition to any liability which the Depositor and FUNB may otherwise have to the Underwriters, their directors or any controlling person of the Underwriters.
(ii) The Depositor and FUNB agree to, jointly and severally, indemnify and hold harmless PaineWebber, its directors and each person, if any, who controls PaineWebber within the meaning of Section 15 of the Securities Act from and against any and all loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Offered Certificates), to which PaineWebber, its directors or any such controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (A) any untrue statement or alleged untrue statement of a material fact contained in any prospectus used after May 24, 1999 (a "MARKET MAKING PROSPECTUS"), or (B) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and shall reimburse PaineWebber, each such director and each such controlling person promptly upon demand for any legal or other expenses reasonably incurred by PaineWebber, such director or such controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action, as such expenses are incurred; provided, however, the Depositor and FUNB shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in a Market Making Prospectus in reliance upon and in conformity with written information furnished to the Depositor by PaineWebber specifically for inclusion therein (as specified in Section 8(h) below). The foregoing indemnity agreement is in addition to any liability which the Depositor and FUNB may otherwise have to PaineWebber, its directors or any controlling person of PaineWebber under this Agreement.
(i) Each Underwriter severally agrees to indemnify and hold harmless the Depositor, each of its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the Securities Act against any and all loss, claim, damage or liability, or any action in respect thereof, to which the Depositor or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) an untrue, statement or alleged untrue statement of a material fact contained in the Registration Statement, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus or (iv) the omission or alleged omission to state therein a material fact required to be stated in the Prospectus or necessary to make the statements in the Prospectus, in the light of the circumstances under which they were made, not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Depositor by or on behalf of the Underwriters specifically for inclusion therein (as specified in Section 8(h) below), and shall reimburse the Depositor and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Depositor or any director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which the Underwriters may otherwise have to the Depositor or any such director, officer or controlling person. Notwithstanding anything to the contrary contained in this Section 8, PaineWebber shall have no obligation to indemnify any party for any loss, claim, damage or liability or contribute to any such loss, claim, damage or liability in respect of untrue statements or alleged untrue statements of material fact or omissions or alleged omissions to state a material fact contained in any Market Making Prospectus.
(ii) PaineWebber shall indemnify and hold harmless FCMC and each person, if any, who controls FCMC within the meaning of Section 15 of the Securities Act from and against any loss, claim, damage or liability, joint or several, and any action in respect thereof, to which FCMC or any such controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any Computational Materials (defined below) furnished or made available by PaineWebber to offerees of the Offered Certificates. FCMC shall indemnify and hold harmless PaineWebber and each person, if any, who controls PaineWebber within the meaning of Section 15 of the Securities Act from and against any loss, claim, damage or liability, joint or several, and any action in respect thereof, to which PaineWebber or any such controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any Computational Materials furnished or made available by FCMC to offerees of the Offered Certificates.
(c) Promptly after receipt by any indemnified party under this Section 8 of notice of any claim or the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify an indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure; and, provided further, that the failure to notify any indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 8. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless: (i) the employment thereof has been specifically authorized by the indemnifying party in writing; (ii) such indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party and in the reasonable judgment of such counsel it is advisable for such indemnified party to employ separate counsel; or (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party, in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party, it being understood, however, the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to local counsel) at any time for all such indemnified parties, which firm shall be designated in writing by the Underwriters, if the indemnified parties under this Section 8 consist of the Underwriters or any of their directors and controlling persons, or by the Depositor, if the indemnified parties under this Section 8 consist of the Depositor or any of the Depositor's directors, officers or controlling persons. Each indemnified party, as a condition of the indemnity agreements contained in Section 8(a) and (b), shall use its best efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected, without its written consent if (A) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (B) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.
(i) Each Underwriter agrees to provide the Depositor no later than two Business Days prior to the day on which the Prospectus Supplement is required to be filed pursuant to Rule 424 with a copy of its Structural Term Sheets and Computational Materials (each as defined below), if any, for filing with the Commission an Form 8-K.
(ii) Each Underwriter agrees to provide the Depositor with its Collateral Term Sheets no later than one Business Day prior to the day on which such Collateral Term Sheets are distributed to potential investors.
(e) Each Underwriter agrees, severally and not jointly, assuming all Seller-Provided Information is accurate and complete in all material respects, to indemnify and hold harmless the Depositor, each of the Depositor's officers who sign the Registration Statement and directors and each person who controls the Depositor within the meaning of Section 15 of the Securities Act against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter they may become subject, subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged any untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(dDerived Information (defined below) under the Actprovided by such Underwriter, or arise out of or are based upon the omission or alleged omission omission, when read in conjunction with the Prospectus, to state therein a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, and, subject and agrees to subsection (c) below, will reimburse each Underwriter such indemnified party for any legal or other expenses reasonably incurred by such Underwriter him, her or it in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case preparing to the extent that defend any such loss, claim, damage damage, liability or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(b) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.are
Appears in 1 contract
Sources: Underwriting Agreement (First Union Residential Securitization Transactions Inc)
Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and, subject to subsection (c) below, will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in any thereof.
(ba) Each Underwriter severally will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and, subject to subsection (c) below, will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred. The Company acknowledges that (i) the names of the Underwriters appearing on the front cover page and back cover page of the Prospectuses, (ii) the names set forth in the table of Underwriters under the first paragraph of text under the caption “Underwriting” of the Pricing Prospectus and the Prospectus, (iii) the third paragraph of text under the caption “Underwriting” of the Pricing Prospectus and the Prospectus relating to the initial sale of the notes at the initial public offering price, selling concessions and reallowances, and the changing of the offering price and other selling terms, (iv) the second sentence of the fourth paragraph of text under the caption “Underwriting” of the Pricing Prospectus and the Prospectus, with respect to market-making activities, and (v) the sixth paragraph of text under the caption “Underwriting” of the Pricing Prospectus and the Prospectus, concerning over-allotment and stabilizing transactions by the Underwriters, constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, any amendment or supplement to any thereof, or any Issuer Free Writing Prospectus.
(cb) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under such subsection and only to the extent such indemnifying party has been prejudiced by such omission so to notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party under subsection (a) or (b) above shall only be liable for the legal expenses of one counsel for all indemnified parties in each jurisdiction in which any claim or action is brought. An indemnified party under subsection (a) or (b) above shall not enter into a settlement of any litigation in respect of which a claim is to be made against the indemnifying party under such subsection unless such settlement is effected with the consent of the indemnifying party.
(dc) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions 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) in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 omissions to state a material fact relates to information supplied by the Company on the one hand or such Underwriters 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 Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters 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 subsection (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 subsection (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 subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such securities and not joint.
(ed) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any Underwriter and to each person, if any, who controls any Underwriter within the meaning of the Act, and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
Appears in 1 contract
Sources: Underwriting Agreement (Hershey Co)