Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates. (c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party. (d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates. (e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities. (f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 3 contracts
Sources: Registration Rights Agreement (Visteon Corp), Registration Rights Agreement (Goldman Sachs Group Inc), Registration Rights Agreement (Ubs Ag)
Indemnification; Contribution. (a) The Company ITC Investments agrees to indemnify and hold harmless each Holder of Shareholder holding Registrable Securities, the Affiliates, directors, officers, employees, membersshareholders, managers and agents of each such Holder Shareholder and each Person who controls any such Holder Shareholder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement registration statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus prospectus or Free Writing Prospectus included in any such Registration Statementregistration statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus prospectus or Free Writing Prospectus included in any such Registration Statementregistration statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company ITC Investments will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company ITC Investments by or on behalf of any such Holder Shareholder specifically for inclusion therein including, without limitation, including any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof3.3(c). This indemnity agreement will be in addition to any liability which the Company ITC Investments may otherwise have.
(b) Each Holder Shareholder severally (and not jointly) agrees to indemnify and hold harmless the Company ITC Investments and each of its Affiliates, directors, employees, membersshareholders, managers and agents and each Person who controls the Company ITC Investments within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement registration statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Shareholder Free Writing Prospectus, preliminary, final or summary Prospectus prospectus included in any such Registration Statementregistration statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus prospectus or Free Writing Prospectus included in any such Registration Statementregistration statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder Shareholder furnished to the Company ITC Investments by or on behalf of such Holder Shareholder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder Shareholder pursuant to this Section 8(b3.8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissionscommissions and other reimbursable expenses) received by such Holder Shareholder in the offering to which such Registration Statement registration statement or Prospectus prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 3.8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 83.8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 3.8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a3.8(a) or Section 8(b3.8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the 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), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d3.8(d) were determined by pro rata allocation (even if the Holders of Shareholders holding Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d3.8(d). The amount paid to or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(d3.8(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 Section 8(d3.8(d), 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. For purposes of this Section 83.8, each Person who controls any Holder of Shareholder holding Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such HolderShareholder, agent or underwriter shall have the same rights to contribution as such HolderShareholder, agent or underwriter, and each Person who controls the Company ITC Investments within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company ITC Investments shall have the same rights to contribution as the CompanyITC Investments, subject in each case to the applicable terms and conditions of this Section 8(d3.8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder Shareholder pursuant to this Section 8(d3.8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissionscommissions and other reimbursable expenses) received by such Holder Shareholder in the offering to which such Registration Statement registration statement or Prospectus prospectus relates.
(e) The provisions of this Section 8 3.8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Shareholder holding Registrable Securities or the Company ITC Investments or any of the officers, directors or controlling Persons referred to in this Section 8 hereof3.8, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under this Section 8 3.8 to the fullest extent permitted by lawApplicable Law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇Securities Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount (after deducting underwriters’ discounts and commissions and other reimbursable expenses) of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 3 contracts
Sources: Shareholders Agreement (Fortis Inc.), Shareholders’ Agreement (Fortis Inc.), Subscription Agreement
Indemnification; Contribution. (a) The Company shall, and it hereby agrees to to, (i) indemnify and hold harmless each Holder Stockholder in any offering or sale of Registrable SecuritiesShares, the Affiliates, directors, officers, employeesand such Stockholder’s partners, members, managers and agents Affiliates (but not, for the avoidance of each doubt, any Stockholder Designee in such Holder person’s capacity as a Director of the Company) and each Person Person, if any, who controls any such Holder of the foregoing Persons within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, Act from and against any and all losses, claims, damages, liabilities or liabilities, or any actions or proceedings (whether commenced or threatened) in respect thereof and costs and expenses (including reasonable fees of counsel) (collectively, “Claims”) to which they or any of them each such indemnified party may become subject subject, insofar as such lossesClaims (including any amounts paid in settlement reached in accordance with the requirements for consent as provided herein), claims, damages, liabilities and expenses (or actions or proceedings in respect thereof) , arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment thereof or supplement thereto, or any document incorporated by reference therein, 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 Disclosure Package, any preliminary or final Prospectus (including any preliminary, final or summary Prospectus or Free Writing Prospectus included in any incorporated into such Registration Statement, in the light of the circumstances under in which they were made) ), not misleading, ; and agrees to (ii) reimburse periodically upon demand each such indemnified party, as incurred, party for any legal or other out-of-pocket expenses reasonably incurred by them such indemnified party in connection with investigating or defending (or preparing to defend) any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding)Claims; provided, however, that the Company will shall not be liable to an indemnified party in any such case to the extent extent, and only to the extent, that any such loss, claim, damage, liability or expense arises (i) Claims arise out of or is are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, or preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company about a Stockholder by such indemnified party expressly for use therein, or if the Stockholder sold securities to the Person alleging such Claims without sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable Prospectus (excluding any documents incorporated by reference therein) or of the applicable Prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Company had previously furnished copies thereof to such Stockholder a reasonable period of time prior to such sale and such Prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveRegistration Statement.
(b) Each Holder Stockholder shall, and hereby agrees to, severally (and not jointlyjointly (i) agrees to indemnify and hold harmless the Company in any offering or sale of Registrable Shares, each director of the Company, each officer of the Company who shall sign the applicable Registration Statement and each of its AffiliatesPerson, directorsif any, employees, members, managers and agents and each Person who controls any of the Company foregoing Persons within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, Act from and against any and all losses, claims, damages or liabilities Claims to which they or any of them each such indemnified party may become subject subject, insofar as such lossesClaims (including any amounts paid in settlement reached in accordance with the requirements for consent as provided herein), claimsor actions or proceedings in respect thereof, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment thereof or supplement thereto, or any document incorporated by reference therein, 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 Disclosure Package, any preliminary or final Prospectus (including any preliminary, final or summary Prospectus or Free Writing Prospectus included in any incorporated into such Registration Statement), in the light of the circumstances under in which they were made) ), not misleading; and (ii) reimburse periodically upon demand each indemnified party for any legal or other out-of-pocket expenses reasonably incurred by such indemnified party in connection with investigating or defending (or preparing to defend) any such Claims, in each case to the extent, but and only to the extent, that such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with information about such Stockholder furnished in writing to the Company by such Stockholder expressly for use therein, or if such Stockholder sold securities to the Person alleging such Claims without sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable Prospectus (excluding any documents incorporated by reference therein) or of the applicable Prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Company had previously furnished copies thereof to the Stockholders a reasonable period of time prior to such sale and such Prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission is contained made in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion thereinRegistration Statement; provided, however, that the total amount to be indemnified by such Holder pursuant to aggregate liability of a Stockholder under this Section 8(b) 6.6 shall be limited to an amount equal to the dollar amount of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering Stockholder from Stockholder Shares sold by such Stockholder pursuant to which such Registration Statement or Prospectus relatesin the transaction giving rise to such Claim.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of Each Stockholder, on the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel)hand, and the indemnifying party shall bear Company, on the reasonable feesother hand, costs and expenses of such separate counsel if (i) agrees that if, for any reason, the use of counsel chosen indemnification provisions contemplated 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a6.6(a) or Section 8(b6.6(b) above is are unavailable to or are insufficient to hold harmless an indemnified party for in respect of any reasonClaims referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection hand, with the respect to statements or omissions which that that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerationsClaims. The relative fault of such indemnifying party and 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 omission to state a material fact relates to information supplied by the such indemnifying party on the one hand or the by such indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the first sentence of this Section 6.6(c) is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and a Stockholder on the other hand shall be deemed to be in the same proportion as the total net proceeds from the offering of securities (net of discounts and commissions but before deducting expenses) giving rise to the applicable Claim bears to the net proceeds received by such Stockholder with respect to its sale of Registrable Shares giving rise to such Claim. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 8(d6.6(c) were to be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 preceding sentences of this Section 8(d6.6(c). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) Claims referred to above in this Section 8(d) shall be deemed to include (subject to the limitations set forth in Section 6.7) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending (or preparing to defend) any such action action, proceeding or claim. Notwithstanding the provisions of this Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) no Stockholder shall be limited liable to contribute any amount in excess of the dollar amount of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering Stockholder from Stockholder Shares sold by such Stockholder pursuant to which such Registration Statement or Prospectus relates.
(e) in the transaction giving rise to such Claim less any amounts previously paid by such Stockholder pursuant to Section 6.6(b). The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred Stockholders obligations to contribute as provided in this Section 8 hereof, 6.6(c) are several and will survive the transfer of Registrable Securitiesnot joint.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 3 contracts
Sources: Stockholders Agreement (Avista Capital Partners GP, LLC), Stockholders Agreement (Angiodynamics Inc), Stockholders Agreement (Angiodynamics Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) the Holder, (ii) each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each person, if any, who controls any such Holder (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) the Holder or underwriter (any of the persons referred to in this clause (iii) being hereinafter referred to as a "controlling person") and (iv) the respective officers, directors, partners, employees, representatives and agents of the Holder or underwriter or any controlling person (any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities and expenses to which they liabilities, judgments or any of them may become subject insofar as such lossesexpenses, claims, damages, liabilities and expenses joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities lawsupon, or upon are caused by any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed or in Prospectus (or any amendment thereof, or the Disclosure Packagesupplement thereto), or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in not misleading, or a violation by the case Company of the Disclosure PackageSecurities Act or any state securities law, or any preliminaryrule or regulation promulgated under the Securities Act or any state securities law, final or summary Prospectus or Free Writing Prospectus included in any other law applicable to the Company relating to any such Registration Statementregistration or qualification, in light except insofar as such losses, claims, damages, liabilities, judgments or expenses of the circumstances under which they were made) not misleading, and agrees to reimburse each any such indemnified party, as incurred, for any legal or other expenses reasonably incurred Person; (x) are caused by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission or alleged omission made therein that is based upon information relating to such indemnified Person furnished in reliance upon and in conformity with written information furnished writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that the Holder specifically for inclusion therein includingsold Securities to a person to whom there was not sent or given, without limitationat or prior to the written confirmation of such sale, any notice and questionnairea copy of the Prospectus, as amended or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which supplemented, if the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, shall have previously furnished copies thereof to the fullest extent permitted by applicable law, from Holder in accordance with this Agreement and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing said Prospectus, preliminaryas amended or supplemented, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any would have corrected such untrue statement or alleged untrue statement omission; or omission (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Blackout Notice or alleged omission is contained in any written information relating to such Holder furnished to a notice from the Company of the existence of any fact of the kind described in Section 2.4(b)(iv), the indemnified Person or the Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified securities by such Holder pursuant to this Section 8(b) Holder. In case any action shall be limited to brought or asserted against any of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering indemnified Persons with respect to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of indemnity may be sought against the commencement of any actionCompany, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, Person shall promptly notify the indemnifying party in writing of Company and the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party Company 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 . Such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Person shall have the right to employ its own separate counsel (in any such action and one local counsel)to participate in the defense thereof, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be at the expense of the indemnified Person unless (i) the use employment of such counsel chosen shall have been specifically authorized in writing by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; Company, (ii) the actual Company shall have failed to assume the defense and employ counsel or potential defendants in, or targets of, (iii) the named parties to any such action (including any implied parties) include both the indemnified party Person and the indemnifying party Company and the indemnified party Person shall have reasonably concluded been advised in writing by its counsel 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; Company (iii) in which case the indemnifying party Company shall not have employed counsel satisfactory the right to assume the defense of such action on behalf of the indemnified party to represent Person), it being understood, however, that the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party Company shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallnot, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction or proceedings arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified partiesPersons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. An indemnifying party The Company shall not be liable under this Section 8 for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified party regarding Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of any judgment with respect on or otherwise seek to terminate any pending or threatened action, claim, action, suit litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the any indemnified parties are actual or potential parties to such claim or action) Person is a party thereto), unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partycompromise, consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (i) termination includes an unconditional release of such each indemnified party Person from all liability on claims that are the subject matter arising out of such proceeding action, claim litigation or proceeding.
(b) The Holder agrees to indemnify and hold harmless the Company and its directors, officers and any person controlling (iiwithin the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) does not include any statement the Company, and the respective officers, directors, partners, employees, representatives and agents of each person, to the same extent as the foregoing indemnity from the Company to or any admission each of faultthe indemnified Persons, culpability or a failure but only (i) with respect to act actions based on information relating to the Holder furnished in writing by or on behalf of such Holder expressly for use in any indemnified partyRegistration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Holder from the sale or other disposition of its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling person in respect of which indemnity may be sought against the Holder, such Holder shall have the rights and duties given the Company in Section 2.8(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling person shall have the rights and duties given to the Holder by Section 2.8(a).
(dc) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 2.8 is unavailable to or insufficient to hold harmless an indemnified party for under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any reasonlosses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party agrees to party, in lieu of indemnifying such indemnified party, shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claimsclaims damages, damages and liabilities liabilities, judgments or expenses (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holder on the other hand from sale of Restricted Securities or (ii) if such 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 referred to in clause (i) above but also the relative fault of the Company and the Holder in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities, judgments or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand or the indemnified party on the other Holder and the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.8(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and the Holder agree that it would not be just and equitable if contribution pursuant to this Section 8(d2.8(c) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 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 Section 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 claimimmediately preceding paragraph. Notwithstanding the provisions of this Section 8(d)2.8(c) the Holder (and its related indemnified Persons) shall not be required to contribute, no Person in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation misrepresentations (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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriterThe indemnity, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to contained in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent 2.8 are in addition to any indemnification by an indemnifying party is prohibited or limited by law, liability which the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would person may otherwise be liable under Section 8 have to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled indemnified persons referred to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationabove.
Appears in 3 contracts
Sources: Registration Rights Agreement (Compost America Holding Co Inc), Registration Rights Agreement (Compost America Holding Co Inc), Registration Rights Agreement (Compost America Holding Co Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, agent and employee of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may become subject under the Securities Act, the Exchange Act or any other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Actfollowing statements, Exchange Act omissions or state securities laws, or upon any violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement, including any preliminary prospectus or in any amendment thereof, or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon the ;
(ii) The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading; or
(in iii) Any violation or alleged violation by the case Company of the Disclosure PackageSecurities Act, the Exchange Act, any applicable state securities law or any preliminaryrule or regulation promulgated under the Securities Act, final the Exchange Act or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding)applicable state securities law; provided, however, that the Company will indemnification required by this Section 5(a) shall not be liable apply to amounts paid in any case to the extent that settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent (and only to the extent) that it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of any indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 5 shall not apply to any underwriter to the extent that any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, loss is based on or (ii) arises out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereoffact, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by fact, contained in or omitted from any preliminary prospectus if the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to final prospectus shall correct or prevent such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The parties agree that it would not be just Company shall also indemnify underwriters participating in the distribution and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending each person who controls any such action or claim. Notwithstanding the provisions of this Section 8(d), no Person guilty of fraudulent misrepresentation underwriter (within the meaning of Section 11(f) 15 of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or Section 20 of the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have Act) to the same rights extent as provided above with respect to the indemnification of the Selling Holders. The Company may also require in any underwriting agreement that it signs, reasonable indemnification and contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director agreements in favor of the Company shall have from the same rights to contribution as underwriters and the Company, subject in each case to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to Selling Holders which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of are selling Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationunderwritten offering.
Appears in 2 contracts
Sources: Side Agreement (Jfax Com Inc), Side Agreement (Efax Com Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actshall indemnify, to the fullest extent permitted by applicable lawLaw, from each holder of Registrable Securities, its officers, directors, partners, employees and agents, if any, and each Person, if any, who controls such holder within the meaning of Section 15 of the Securities Act, against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions proceedings in respect thereof) arise out of and expenses (under the Securities Act or are based upon common law or otherwise), joint or several, resulting from any violation by the Company of the provisions of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement any registration statement or prospectus (and as originally filed amended or in any amendment thereof, supplemented if amended or the Disclosure Package, supplemented) or any preliminary, final preliminary prospectus or summary Prospectus or Free Writing Prospectus included in caused by any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus, in light of the circumstances under which they were made) not misleading, and except to the extent that such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses are caused by any untrue statement or alleged untrue statement contained in or by any omission or alleged omission from information concerning any holder of Registrable Securities furnished in writing to the Company by such holder expressly for use therein. No action or failure to act on the part of the underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence. In connection with any underwritten offering pursuant to Section 3.2, the Company agrees to reimburse enter into an underwriting agreement in customary form with the applicable underwriters, and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such indemnified party, underwriters within the meaning of Section 15 of the Securities Act to the same extent as incurred, for any legal or other expenses reasonably incurred by them in connection herein before provided with investigating or defending respect to the indemnification of the holders of Registrable Securities; provided that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or action (whether proceedings in respect thereof) or not the indemnified party expense for which indemnification is claimed results from such underwriter’s failure to send or give a party to any proceeding); provided, however, that the Company will not be liable in any case copy of an amended or supplemented final prospectus to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such Person asserting an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished at or prior to the Company by or on behalf written confirmation of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales the sale of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be such Person if such statement or omission was corrected in addition such amended or supplemented final prospectus prior to any liability which such written confirmation and the Company may otherwise haveunderwriter was provided with such amended or supplemented final prospectus.
(b) Each Holder In connection with any registration statement in connection with an offering in which a holder of Registrable Securities is participating, each such holder, severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Actshall indemnify, to the fullest extent permitted by applicable lawLaw, from the Company, each underwriter and against any their respective officers, directors, employees and all lossesagents, claimsif any, damages and each Person, if any, who controls the Company or liabilities to which they or any such underwriter within the meaning of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation Section 15 of the Securities Act, Exchange Act against any losses, claims, damages, liabilities (or state securities laws, upon proceedings in respect thereof) and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereoffact, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof 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 in the registration statement or prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, extent that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written or such omission is from information relating to so concerning a holder furnished in writing by such Holder furnished to the Company by or on behalf of such Holder specifically holder expressly for inclusion use therein; provided, however, provided that the total amount to be indemnified by such Holder pursuant to this Section 8(b) holder’s obligations hereunder shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) received by to such Holder in holder of the offering Registrable Securities sold pursuant to which such Registration Statement or Prospectus relatesregistration statement.
(c) Promptly after receipt by an indemnified party Any Person entitled to indemnification under the provisions of this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party 3.5 shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice give prompt notice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; any claim with respect to which it seeks indemnification and (ii) will not, in any event, relieve the permit such indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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 claim, with counsel reasonably satisfactory to the indemnified party; and if such indemnified defense is so assumed, such indemnifying party (who shall not, except with not enter into any settlement without the consent of the indemnified party, be counsel party if such settlement attributes liability to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the and such indemnifying party shall not be liable subject to such indemnified party any liability for any legal expenses of other counsel or settlement made without its consent (which shall not be unreasonably withheld); and any other expenses subsequently incurred by such indemnified party in connection underwriting agreement entered into with respect to any registration statement provided for under this Article III shall so provide. In the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the event an indemnifying party shall bear elect not to assume the reasonable feesdefense of a claim, 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 be obligated 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, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate counsel or firm of attorneys (in addition to any local counsel) counsel for all parties indemnified parties. An by such indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyclaim.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party If for any reasonreason the foregoing indemnity is unavailable, then each applicable the indemnifying party agrees to shall contribute to the aggregate amount paid or payable by the indemnified party as a result of such losses, claims, damages and damages, liabilities or expenses (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party on the one hand and the indemnified party on the other in connection with or (ii) if the statements allocation provided by clause (i) above is not permitted by applicable Law or omissions which resulted provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such losses, claims, damages or liabilities (or actions in respect thereof), proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The relative fault shall be determined by reference toNotwithstanding the foregoing, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders no holder of Registrable Securities or shall be required to contribute any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account amount in excess of the equitable considerations referred amount such holder would have been required to above in this Section 8(d). The amount paid or payable by pay to an indemnified party as a result of if the losses, claims, damages or liabilities (or actions in respect thereofindemnity under Section 3.5(b) referred to above in this Section 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 claimwere available. Notwithstanding the provisions of this Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent The obligation of any such Holder, agent or underwriter shall have the same rights Person to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) 3.5 shall be limited to the net proceeds (after deducting underwriters’ discounts several and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesnot joint.
(e) The An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 8 will 3.5 to or for the account of the indemnified party from time to time promptly upon receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in this Section 3.5 shall remain in full force and effect, effect regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer a participating holder of Registrable Securities.
(f) To , its officers, directors, agents or any Person, if any, who controls such holder as aforesaid, and shall survive the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale Transfer of Registrable Equity Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from holder and the sale termination of such Registrable Securities pursuant to such Shelf Registrationthis Agreement for any reason.
Appears in 2 contracts
Sources: Merger Agreement (Mobile Mini Inc), Stockholders Agreement (Mobile Mini Inc)
Indemnification; Contribution. (a) The Company agrees agrees, to the extent permitted by law, to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person Person, if any, who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damagesdamages or liabilities, liabilities and expenses joint or several, to which they or any of them may become subject under the Act or otherwise ("Indemnified Holder"), and to reimburse the Holders and such controlling Person or Persons, if any, for any legal or other expenses incurred by them in connection with defending any action, suit or proceeding (including governmental investigations) as provided in Section 4(c) hereof, insofar as such losses, claims, damages, liabilities and expenses or actions, suits or proceedings (or actions in respect thereofincluding governmental investigations) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement, or, if any Shelf Registration Statement shall be amended or supplemented, in the Shelf Registration Statement as originally filed so amended or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretosupplemented, 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 Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each except insofar as such indemnified partylosses, as incurredclaims, for any legal damages, liabilities or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) actions arise out of or is are based upon any such untrue statement or alleged untrue statement or omission or alleged omission which was made therein in the Shelf Registration Statement or in the Shelf Registration Statement as so amended or supplemented, in reliance upon and in conformity with written information furnished in writing to the Company by any Holder expressly for use therein. The Company's indemnity agreement contained in this Section 4(a), and the covenants, representations and warranties of the Company contained in this Agreement, shall remain in full force and effect regardless of any investigation made by or on behalf of any such Holder specifically for inclusion therein includingPerson, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This the indemnity agreement will be contained in this Section 4 shall survive any termination of this Agreement. The liabilities of the Company in this Section 4 are in addition to any liability which other liabilities of the Company may otherwise haveunder this Agreement or otherwise.
(b) Each Holder agrees, severally (and not jointly) agrees , to indemnify and the extent permitted by law, to indemnify, hold harmless and reimburse the Company and each of its AffiliatesPerson, directorsif any, employees, members, managers and agents and each Person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest same extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar upon the same terms as such losses, claims, damages or liabilities arise out of or are based upon any violation the indemnity agreement of the Securities ActCompany set forth in Section 4(a) hereof, Exchange Act or state securities laws, upon any untrue statement or but only with respect to alleged untrue statement of a material fact contained statements or omissions made in a the Shelf Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Shelf Registration Statement, as amended 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 supplemented (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementif applicable), in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained reliance upon and in any written conformity with information relating to such Holder furnished in writing to the Company by such Holder expressly for use therein. The indemnity agreement on the part of each Holder contained in this Section 4(b) shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder specifically for inclusion therein; providedthe Company or any other Person, however, that and the total amount to be indemnified by such Holder pursuant to indemnity agreement contained in this Section 8(b4(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatessurvive any termination of this Agreement.
(c) Promptly If a claim is made or an action, suit or proceeding (including governmental investigations) is commenced or threatened against any person as to which indemnity may be sought under Section 4(a) or 4(b) hereof, such Person (the "Indemnified Person") shall notify the Person against whom such indemnity may be sought (the "Indemnifying Person") promptly after receipt by any assertion of such claim threatening to institute an indemnified party under this Section 8 of notice action, suit or proceeding or, if such an action, suit or proceeding is commenced against such Indemnified Person, promptly after such Indemnified Person shall have been served with a summons or other first legal process, giving information as to the nature and basis of the commencement of any action, such indemnified party will, if a claim in respect thereof is claim. Failure to be made against the indemnifying party under this Section 8, so notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will Indemnifying Person shall not, in any eventhowever, relieve the indemnifying party Indemnifying Person from any obligations to any indemnified party other than liability which it may have on account of the indemnification obligation provided in paragraph (aindemnity under Section 4(a) or (b4(b) abovehereof if the Indemnifying Person has not been prejudiced in any material respect by such failure. The indemnifying party shall be entitled to participate therein and, Subject to the extent that it immediately succeeding sentence, the Indemnifying Person shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofof any such litigation or proceeding, including the employment of counsel and the payment of all expenses, with such counsel satisfactory being designated, subject to such indemnified party (who shall notthe immediately succeeding sentence, except with the consent in writing by a majority in principal amount of the indemnified party, be counsel to the indemnifying party), and, except as provided Holders in the next sentence, after notice from case of parties indemnified pursuant to Section 4(b) hereof and by the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights Company in the prior sentence, the case of parties indemnified party pursuant to Section 4(a) hereof. Any Indemnified Person shall have the right to employ participate in such litigation or proceeding and to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include (x) the Indemnifying Person and (y) the Indemnified Person and, in the written opinion of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or likely conflicts of interest between them, in either of which cases the reasonable fees and expenses of counsel (and one local counsel)including disbursements) for such Indemnified Person shall be reimbursed by the Indemnifying Person to the Indemnified Person. If there is a conflict as described in clause (ii) above, and the indemnifying party Indemnified Persons have participated in the litigation or proceeding utilizing separate counsel whose fees and expenses have been reimbursed by the Indemnifying Person, and the Indemnified Persons, or any of them, are found to be solely liable, such Indemnified Person shall bear repay to the reasonable fees, costs Indemnifying Parties such fees and expenses of such separate counsel if (i) as 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 Indemnifying Person shall have reasonably concluded reimbursed. It is understood 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 Indemnifying Person 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 shallnot, in connection with any one action litigation or separate but substantially similar proceeding or related actions litigation or proceedings in the same jurisdiction arising out of as to which the same general circumstances or allegationsIndemnified Persons are entitled to such separate representation, be liable under this Agreement for the reasonable fees and out-of-pocket expenses of more than one separate firm of attorneys (in addition to any together with not more than one appropriate local counsel) for all indemnified partiessuch Indemnified Persons. An indemnifying party Subject to the next paragraph, all such fees and expenses shall be reimbursed by payment to the Indemnified Persons of such reasonable fees and expenses of counsel promptly after payment thereof by the Indemnified Persons. In furtherance of the requirement above that fees and expenses of any separate counsel for the Indemnified Persons shall be reasonable, the Holders and the Company agree that the Indemnifying Person's obligations to pay such fees and expenses shall be conditioned upon the following:
(1) in case separate counsel is proposed to be retained by the Indemnified Persons pursuant to clause (ii) of the preceding paragraph, the Indemnified Persons shall in good faith fully consult with the Indemnifying Person in advance as to the selection of such counsel;
(2) reimbursable fees and expenses of such separate counsel shall be detailed and supported in a manner reasonably acceptable to the Indemnifying Person (but nothing herein shall be deemed to require the furnishing to the Indemnifying Person of any information, including, without limitation, computer print-outs of lawyers' daily time entries, to the extent that, in the judgment of such counsel, furnishing such information might reasonably be expected to result in a waiver of any attorney-client privilege); and
(3) the Company and the Holders shall cooperate in monitoring and controlling the fees and expenses of separate counsel for Indemnified Persons for which the Indemnifying Person is liable hereunder, and the Indemnified Person shall use every reasonable effort to cause such separate counsel to minimize the duplication of activities as between themselves and counsel to the Indemnifying Person. The Indemnifying Person shall not be liable under for any settlement of any litigation or proceeding effected without the written consent of the Indemnifying Person, but if settled with such consent or if there be a final judgment against the Indemnified Person, the Indemnifying Person agrees, subject to the provisions of this Section 8 4, to indemnify the Indemnified Person from and against any indemnified party regarding loss, damage, liability or expenses by reason of such settlement or judgment. The Indemnifying Person shall not, without the prior written consent of the Indemnified Persons, effect any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claimlitigation, action, suit proceeding or proceeding claim in respect of which indemnification or contribution may be indemnity has been properly sought hereunder (whether or not by the indemnified parties are actual or potential parties to such claim or action) unless such settlementIndemnified Persons hereunder, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release by the claimant of such indemnified party all Indemnified Persons from all liability on with respect to claims that which are the subject matter of such litigation, proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyclaim.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 4 is unavailable to or insufficient to hold harmless an indemnified party for Indemnified Person under this Section 4 in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and or liabilities (includingor actions, without limitationsuits or proceedings (including governmental investigations) in respect thereof) referred to therein, legal then each Indemnifying Person under this Section 4 shall contribute to the amount paid or other expenses reasonably incurred payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (or actions in connection with investigating or defending samerespect thereof) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Indemnifying Person on the one hand and the indemnified party Indemnified Person on the other from the sale of the Registrable Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each Indemnifying Person shall contribute to such amount paid or payable by such Indemnified Person in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of each Indemnifying Person, if any, on the one hand and the Indemnified Person on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions actions, suits or proceedings (including governmental investigations) in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Company on the one hand or the indemnified party Holders on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)4. The amount paid or payable by an indemnified party Indemnified Person as a result of the losses, claims, damages or liabilities (or actions actions, suits or proceedings (including governmental proceedings) in respect thereof) referred to above in this Section 8(d) 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party Indemnified Person in connection with investigating or defending any such action actions, suits or claimproceedings (including governmental proceedings) or claims, provided that the provisions of this Section 4 have been complied with (in all material respects) in respect of any separate counsel for such Indemnified Person. Notwithstanding the provisions of this Section 8(d)4, no Holder shall be required to contribute any amount greater than the excess of the amount by which the total received by such Holder with respect to the sale of its Registrable Securities pursuant to a Shelf Registration Statement exceeds the sum of (A) the amount paid by such Holder for such Registrable Securities plus (B) the amount of any damages which such 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 person who was not guilty of such fraudulent misrepresentation. For purposes of The Holders' obligations in this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act 4 to contribute are several in proportion to their respective obligations and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights not joint. The agreement with respect to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject contained in each case to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) 4 shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, effect regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereofHolder, and will shall survive the transfer any termination of Registrable Securitiesthis Agreement.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Purchase Agreement (CMS Energy Corp), Registration Rights Agreement (CMS Energy Corp)
Indemnification; Contribution. (a) The Company agrees Dealer Manager will indemnify, defend (subject to indemnify Section 4 of the Dealer Manager Agreement) and hold harmless each Holder of Registrable Securitiesthe Wholesaler, the Affiliatesits affiliates and their respective officers, directors, officers, employeesshareholders, members, managers partners, other equity-holders and agents control persons (collectively, the “Other Indemnified Parties”), from and against any losses, claims (including the reasonable costs of each such Holder investigation and each Person who controls any such Holder within legal fees), damages or liabilities (or actions in respect thereof), to which the meaning of either Wholesaler, its affiliates or their respective Other Indemnified Parties may become subject under the Securities Act or the Exchange Act, to the fullest extent permitted by applicable lawor otherwise, from and against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) arise out of or are based upon upon: (i) any violation inaccuracy in or breach of a representation or warranty contained herein by the Dealer Manager, any breach of a covenant or agreement contained herein of the Securities Act, Exchange Act or state securities lawsDealer Manager, or upon any failure by the Dealer Manager to comply with state or federal securities law applicable to the Offering; (ii) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed the information relating to the Dealer Manager that appears in the Dealer Manager Sections of the Prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein in the Dealer Manager Sections a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementtherein, in light of the circumstances under which they were made) , not misleading, ; and agrees to (iii) any unauthorized use of sales materials or use of unauthorized verbal representations concerning the Offered Shares by the Dealer Manager. The Dealer Manager will reimburse each such indemnified party, as incurred, the Wholesaler and its Other Indemnified Parties for any legal or other expenses reasonably incurred by them such Wholesaler, its affiliates and their respective Other Indemnified Parties in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveaction.
(b) Each Holder severally (and not jointly) agrees to indemnify The Wholesaler will indemnify, defend and hold harmless the Dealer Manager, the Company and each their respective Other Indemnified Parties, from and against any losses, claims (including the reasonable costs of its Affiliatesinvestigation and legal fees), directorsdamages or liabilities (or actions in respect thereof), employeesto which the Dealer Manager, members, managers and agents and each Person who controls the Company within the meaning and any of either their respective Other Indemnified Parties may become subject under the Securities Act or the Exchange Act, to the fullest extent permitted by applicable lawor otherwise, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claimsclaims (including the reasonable costs of investigation and legal fees), damages or liabilities (or actions in respect thereof) arise out of or are based upon upon: (i) any violation inaccuracy in or breach of a representation or warranty contained herein by the Wholesaler, any breach of a covenant or agreement contained herein of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure PackageWholesaler, or any preliminary, final failure by the Wholesaler to comply with state or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, federal securities laws applicable to the extent, but only to Offering; and (ii) any unauthorized use of sales materials or use of unauthorized verbal representations concerning the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to Shares by the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesWholesaler.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8party, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above this Section 8 unless and to the extent it did not otherwise learn of such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) abovethis Agreement. 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, except as provided in the next sentence, after notice from ’s choice at the indemnifying party party’s expense to such represent the indemnified party of its election to so 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 for any legal expenses of other or parties except as set forth below); provided, however, that such counsel shall be subject to approval by the indemnified party, not to be unreasonably withheld or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationdelayed. Notwithstanding the indemnifying party’s rights election to appoint counsel to represent the indemnified party in the prior sentencean action, the indemnified party shall have the right to employ its own and select separate counsel (and one including local counsel), subject to approval by the indemnifying party not to be unreasonably withheld or delayed, 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 for the indemnified party (subject to approval by the indemnified party not to be unreasonably withheld or delayed) to represent the indemnified party within a reasonable time after notice of the institution of such action; 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, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement may 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 but may not do so without the prior written consent of the indemnified parties are actual or potential parties to such claim or action) parties, unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such proceeding and (ii) does not include any statement as to claim, action, suit or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyproceeding.
(d) In If the event that the indemnity right to indemnification provided for in this Section 8(a) or Section 8(b) above 8 would by its terms be available to a person hereunder, but is held to be unavailable to or insufficient to hold harmless an indemnified party by a court of competent jurisdiction for any reason, then each applicable indemnifying party agrees to shall contribute to the aggregate lossesamount paid or payable by such indemnified party as a result of such Losses and expenses in respect thereof, claimsas incurred, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand Dealer Manager and the indemnified party on the other Wholesaler, as applicable, in connection with the statements statements, omissions or omissions other circumstances which resulted in such losses, claims, damages Losses or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Dealer Manager and the Wholesaler, as applicable, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, and access to information and opportunity to correct or prevent such statement or omissioninformation. The parties agree It is understood that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), no Person the Dealer Manager shall not be required to contribute any amount in excess of the total price of the Offering Shares sold by it. 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. For purposes of this Section 88(d), each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director Other Indemnified Party affiliate of the Company Dealer Manager shall have the same rights to contribution as the Company, subject in Dealer Manager and each case to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any Other Indemnified Party of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive Wholesaler shall have the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled same rights to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to as the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationWholesaler.
Appears in 2 contracts
Sources: Equity Purchase Agreement (ARC Properties Operating Partnership, L.P.), Equity Purchase Agreement (RCS Capital Corp)
Indemnification; Contribution. (a) The Company shall, and it hereby agrees to to, indemnify and hold harmless each Holder of Registrable SecuritiesParticipating Investor and its partners, the Affiliatesmembers, officers, directors, employees and controlling Persons, if any, and each underwriter, its partners, officers, employeesdirectors, membersemployees and controlling Persons, managers and agents if any, in any offering or sale of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange ActCommon Shares, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, damages or liabilities and expenses to which they or any of them each such indemnified party may become subject subject, insofar as such losses, claims, damagesdamages or liabilities, liabilities and expenses (or actions or proceedings in respect thereof) , including any amounts paid in settlement as provided herein (collectively, "Claims"), arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Packageregistration statement, or any preliminary, preliminary or final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus contained therein, or in any amendment thereof or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any 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 in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse each Participating Investor or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by it in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by such Participating Investor or any underwriter expressly for use therein.
(b) Each Participating Investor shall, and hereby agrees to (1) indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Common Shares, against any Claims to which each such indemnified party may become subject, insofar as such Claims arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon 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 Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse in each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case only to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Company by such Participating Investor expressly for use therein, and (2) reimburse the Company for any legal or on behalf of other out-of-pocket expenses reasonably incurred by the Company in connection with investigating or defending any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesClaim.
(c) Promptly after receipt by an indemnified party under this Section 8 4.7(a) or Section 4.7(b) of written notice of the commencement of any actionaction or proceeding for which indemnification under Section 4.7(a) or Section 4.7(b) may be requested, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, shall notify the indemnifying party in writing of the commencement thereof; of such action or proceeding, but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above unless and which it may have to the extent any indemnified party in respect of such action and such failure results in material prejudice to or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, no event shall such omission relieve the indemnifying party from any obligations other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party other than and it shall notify an indemnifying party of the indemnification obligation provided in paragraph (a) or (b) above. The commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and If 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 inis not entitled to, or targets ofelects not to, any such action include both assume the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may defense of a claim, it will not be legal defenses available obligated 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys (in addition counsel for each indemnified party with respect to such claim. The indemnifying party will not be subject to any local counsel) liability for all indemnified parties. An indemnifying party any settlement made without its consent, which consent shall not be liable under this Section 8 to any indemnified unreasonably withheld or delayed. No indemnifying party regarding any settlement or compromise or shall, without the prior written 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 settlementparty, compromise or consent is consented to by such 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 agreement with respect to any action or compromise proceeding in respect of which indemnification is sought under Section 4.7(a) or Section 4.7(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent or settlement or compromise (i) includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter in respect of such proceeding claim or litigation and (ii) does not include subject the indemnified party to any statement as to material injunctive relief or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyother material equitable remedy.
(d) In Each Participating Investor and the event Company agree that if, for any reason, the indemnity provided in Section 8(aindemnification provisions contemplated by Sections 4.7(a) or Section 8(b4.7(b) above is hereof are unavailable to or are insufficient to hold harmless an indemnified party for in respect of any reasonClaims referred to therein (other than as a result of the provisos thereto), then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative fault of and benefits derived by the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)hand, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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) Claims referred to above in this Section 8(d) shall be deemed to include (subject to the limitations set forth in Section 4.7(c) hereof) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action action, pro- ceeding or claim. Notwithstanding the provisions of this Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Shareholders Agreement (Arch Capital Group LTD), Shareholder Agreement (Arch Capital Group LTD)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of If any Registrable Securities, Securities are included in a registration statement under this Agreement:
6.1. To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, and employee of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Actfollowing statements, Exchange Act omissions or state securities laws, or upon any violations (collectively a “Violation”):
(i) Any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement, including any preliminary prospectus or in any amendment thereof, or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon the ; or
(ii) The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will indemnification required by this Section 7.1 shall not be liable apply to amounts paid in any case to the extent that settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 shall not apply to any underwriter to the extent that any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, loss is based on or (ii) arises out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact fact, or an omission or alleged omission to state a material fact, contained in a Registration Statement as originally filed or in omitted from any amendment thereofpreliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the Disclosure Package distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any Holder Free Writing Prospectusother Selling Holder, preliminary, final or summary Prospectus included in any controlling Person of any such Registration Statementother Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or in to which any amendment thereof of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or supplement theretoother federal or state laws, or insofar as such losses, claims, damages, liabilities and expenses 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 the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementViolation, in light of the circumstances under which they were made) not misleading, each case to the extent, but extent (and only to the extent, ) that any such untrue statement or alleged untrue statement or omission or alleged omission is contained Violation occurs in any reliance upon and in conformity with written information relating to furnished by such Selling Holder furnished to the Company by or on behalf of expressly for use in connection with such Holder specifically for inclusion thereinregistration; provided, however, that (x) the total amount to be indemnified indemnification required by such Holder pursuant to this Section 8(b7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, and (y) in no event shall be limited to the net amount of any indemnity under this Section 7.2 exceed the gross proceeds (after deducting underwriters’ discounts and commissions) from the applicable offering received by such Holder in the offering to which such Registration Statement or Prospectus relatesSelling Holder.
(c) 6.3. Promptly after receipt by an indemnified party under this Section 8 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is to be made against the indemnifying party under this Section 87, notify the indemnifying such indemnified party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice shall deliver to the indemnifying party a written notice of the commencement thereof and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve shall have the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel satisfactory the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (who including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall not, except with the consent of be paid to the indemnified party, be counsel as incurred, within thirty (30) days of written notice thereof to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such (regardless of whether it is ultimately determined that an indemnified party of its election is not entitled to so assume the defense thereof, the indemnifying party shall not be liable to indemnification hereunder). Any such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and one local counsel), and expenses or (ii) the indemnifying party shall bear have failed to promptly assume the reasonable fees, costs and expenses defense of such separate counsel if action, claim or proceeding or (iiii) the use of counsel chosen by the indemnifying party named parties 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 action, claim or proceeding (including any impleaded parties) include both the such indemnified party and the indemnifying party party, and the such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional in addition to those available to the indemnifying party; (iii) party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party shall could not have employed counsel satisfactory to the indemnified party to faithfully represent the indemnified party within a reasonable time after notice of the institution of (in which case, if such action; or (iv) indemnified party notifies the indemnifying party shall authorize the indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. No , the indemnifying party shallshall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one action such action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all such indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 reasonable judgment or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter a conflict of interest may exist between such indemnified party and any other of such proceeding indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the fees and (ii) does not include any statement as expenses of such additional counsel or counsels). No indemnifying party shall be liable to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reasonsettlement of any action, then each applicable proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
6.4. If the indemnification required by this Section 7 from the indemnifying party agrees is unavailable to contribute to the aggregate an indemnified party hereunder in respect of any losses, claims, damages and damages, liabilities or expenses referred to in this Section 7:
(includingi) The indemnifying party, without limitationin lieu of indemnifying such indemnified party, legal shall contribute to the amount paid or other payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions 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 fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 7.4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d7.4(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no 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.
6.5. For purposes of If indemnification is available under this Section 87, the indemnifying parties shall indemnify each Person who controls indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights other equitable consideration referred to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director in Section 7.4.
6.6. The obligations of the Company shall have and the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder Selling Holders of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in under this Section 8 hereof, and will 7 shall survive the transfer completion of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale offering of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationa registration statement under this Agreement, and otherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (Gleacher & Company, Inc.), Registration Rights Agreement (First Albany Companies Inc)
Indemnification; Contribution. (a) The Company agrees agree to indemnify indemnify, defend and hold harmless each Holder of Registrable Securities, Piggyback Investor and the Affiliatesrespective officers, directors, officerspartners, employees, members, managers representatives and agents of each such Holder and each any Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act(each, to the fullest extent permitted by applicable lawan “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any registration statement or in prospectus which registers the resale of any amendment thereofof such Piggyback Investor’s Warrant Stock, or the Disclosure Package, or including any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any registration statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified partythe Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that the Company will shall not be liable required to provide any indemnification pursuant to this Section 3.5 in any such case to the extent that insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon (i) any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of an Piggyback Investor expressly for use in, any such Holder specifically for inclusion therein including, without limitation, registration statement or any notice and questionnaire, prospectus or (ii) out a disposition, pursuant to a registration statement, of sales of Registrable Securities made Warrant Stock by an Piggyback Investor during a Suspension Period after notice is given pursuant to postponement period referenced in Section 2(e)(ii) hereof3.4. This indemnity agreement will be If the indemnification provided for in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above 3.5 is unavailable to an Indemnified Party, or insufficient to hold harmless an indemnified party for such Indemnified Party harmless, in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable the Company, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand, and by the Piggyback Investor, on the other hand, from the offering 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 referred to in clause (i) above but also the relative fault of the indemnifying party Company, on the one hand hand, and of the indemnified party Piggyback Investor, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Co Sale and Stock Restriction Agreement, Co Sale and Stock Restriction Agreement (HUGHES Telematics, Inc.)
Indemnification; Contribution. (a) The Company agrees agrees, to the extent permitted by law, to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person Person, if any, who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damagesdamages or liabilities, liabilities and expenses joint or several, to which they or any of them may become subject under the Act or otherwise ("Indemnified Holder"), and to reimburse the Holders and such controlling Person or Persons, if any, for any legal or other expenses incurred by them in connection with defending any action, suit or proceeding (including governmental investigations) as provided in Section 4(c) hereof, insofar as such losses, claims, damages, liabilities and expenses or actions, suits or proceedings (or actions in respect thereofincluding governmental investigations) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement, or, if any Shelf Registration Statement shall be amended or supplemented, in the Shelf Registration Statement as originally filed so amended or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretosupplemented, 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 Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each except insofar as such indemnified partylosses, as incurredclaims, for any legal damages, liabilities or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) actions arise out of or is are based upon any such untrue statement or alleged untrue statement or omission or alleged omission which was made therein in the Shelf Registration Statement or in the Shelf Registration Statement as so amended or supplemented, in reliance upon and in conformity with written information furnished in writing to the Company by any Holder expressly for use therein. The Company's indemnity agreement contained in this Section 4(a), and the covenants, representations and warranties of the Company contained in this Agreement, shall remain in full force and effect regardless of any investigation made by or on behalf of any such Holder specifically for inclusion therein includingPerson, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This the indemnity agreement will be contained in this Section 4 shall survive any termination of this Agreement. The liabilities of the Company in this Section 4 are in addition to any liability which other liabilities of the Company may otherwise haveunder this Agreement or otherwise.
(b) Each Holder agrees, severally (and not jointly) agrees , to indemnify and the extent permitted by law, to indemnify, hold harmless and reimburse the Company and each of its AffiliatesPerson, directorsif any, employees, members, managers and agents and each Person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest same extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar upon the same terms as such losses, claims, damages or liabilities arise out of or are based upon any violation the indemnity agreement of the Securities ActCompany set forth in Section 4(a) hereof, Exchange Act or state securities laws, upon any untrue statement or but only with respect to alleged untrue statement of a material fact contained statements or omissions made in a the Shelf Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Shelf Registration Statement, as amended 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 supplemented (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementif applicable), in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained reliance upon and in any written conformity with information relating to such Holder furnished in writing to the Company by such Holder expressly for use therein. The indemnity agreement on the part of each Holder contained in this Section 4(b) shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder specifically for inclusion therein; providedthe Company or any other Person, however, that and the total amount to be indemnified by such Holder pursuant to indemnity agreement contained in this Section 8(b4(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatessurvive any termination of this Agreement.
(c) Promptly If a claim is made or an action, suit or proceeding (including governmental investigations) is commenced or threatened against any person as to which indemnity may be sought under Section 4(a) or 4(b) hereof, such Person (the "Indemnified Person") shall notify the Person against whom such indemnity may be sought (the "Indemnifying Person") promptly after receipt by any assertion of such claim threatening to institute an indemnified party under this Section 8 of notice action, suit or proceeding or, if such an action, suit or proceeding is commenced against such Indemnified Person, promptly after such Indemnified Person shall have been served with a summons or other first legal process, giving information as to the nature and basis of the commencement of any action, such indemnified party will, if a claim in respect thereof is claim. Failure to be made against the indemnifying party under this Section 8, so notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will Indemnifying Person shall not, in any eventhowever, relieve the indemnifying party Indemnifying Person from any obligations to any indemnified party other than liability which it may have on account of the indemnification obligation provided in paragraph (aindemnity under Section 4(a) or (b4(b) abovehereof if the Indemnifying Person has not been prejudiced in any material respect by such failure. The indemnifying party shall be entitled to participate therein and, Subject to the extent that it immediately succeeding sentence, the Indemnifying Person shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereofof any such litigation or proceeding, including the employment of counsel and the payment of all expenses, with such counsel satisfactory being designated, subject to such indemnified party (who shall notthe immediately succeeding sentence, except with the consent in writing by a majority in interest of the indemnified party, be counsel to the indemnifying party), and, except as provided Holders in the next sentence, after notice from case of parties indemnified pursuant to Section 4(b) hereof and by the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights Company in the prior sentence, the case of parties indemnified party pursuant to Section 4(a) hereof. Any Indemnified Person shall have the right to employ participate in such litigation or proceeding and to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include (x) the Indemnifying Person and (y) the Indemnified Person and, in the written opinion of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or likely conflicts of interest between them, in either of which cases the reasonable fees and expenses of counsel (and one local counsel)including disbursements) for such Indemnified Person shall be reimbursed by the Indemnifying Person to the Indemnified Person. If there is a conflict as described in clause (ii) above, and the indemnifying party Indemnified Persons have participated in the litigation or proceeding utilizing separate counsel whose fees and expenses have been reimbursed by the Indemnifying Person, and the Indemnified Persons, or any of them, are found to be solely liable, such Indemnified Person shall bear repay to the reasonable fees, costs Indemnifying Parties such fees and expenses of such separate counsel if (i) as 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 Indemnifying Person shall have reasonably concluded reimbursed. It is understood 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 Indemnifying Person 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 shallnot, in connection with any one action litigation or separate but substantially similar proceeding or related actions litigation or proceedings in the same jurisdiction arising out of as to which the same general circumstances or allegationsIndemnified Persons are entitled to such separate representation, be liable under this Agreement for the reasonable fees and out-of-pocket expenses of more than one separate firm of attorneys (in addition to any together with not more than one appropriate local counsel) for all indemnified partiessuch Indemnified Persons. An indemnifying party Subject to the next paragraph, all such fees and expenses shall be reimbursed by payment to the Indemnified Persons of such reasonable fees and expenses of counsel promptly after payment thereof by the Indemnified Persons. In furtherance of the requirement above that fees and expenses of any separate counsel for the Indemnified Persons shall be reasonable, the Holders and the Company agree that the Indemnifying Person's obligations to pay such fees and expenses shall be conditioned upon the following:
(1) in case separate counsel is proposed to be retained by the Indemnified Persons pursuant to clause (ii) of the preceding paragraph, the Indemnified Persons shall in good faith fully consult with the Indemnifying Person in advance as to the selection of such counsel;
(2) reimbursable fees and expenses of such separate counsel shall be detailed and supported in a manner reasonably acceptable to the Indemnifying Person (but nothing herein shall be deemed to require the furnishing to the Indemnifying Person of any information, including, without limitation, computer print-outs of lawyers' daily time entries, to the extent that, in the judgment of such counsel, furnishing such information might reasonably be expected to result in a waiver of any attorney-client privilege); and
(3) the Company and the Holders shall cooperate in monitoring and controlling the fees and expenses of separate counsel for Indemnified Persons for which the Indemnifying Person is liable hereunder, and the Indemnified Person shall use every reasonable effort to cause such separate counsel to minimize the duplication of activities as between themselves and counsel to the Indemnifying Person. The Indemnifying Person shall not be liable under for any settlement of any litigation or proceeding effected without the written consent of the Indemnifying Person, but if settled with such consent or if there be a final judgment against the Indemnified Person, the Indemnifying Person agrees, subject to the provisions of this Section 8 4, to indemnify the Indemnified Person from and against any indemnified party regarding loss, damage, liability or expenses by reason of such settlement or judgment. The Indemnifying Person shall not, without the prior written consent of the Indemnified Persons, effect any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claimlitigation, action, suit proceeding or proceeding claim in respect of which indemnification or contribution may be indemnity has been properly sought hereunder (whether or not by the indemnified parties are actual or potential parties to such claim or action) unless such settlementIndemnified Persons hereunder, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release by the claimant of such indemnified party all Indemnified Persons from all liability on with respect to claims that which are the subject matter of such litigation, proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyclaim.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 4 is unavailable to or insufficient to hold harmless an indemnified party for Indemnified Person under this Section 4 in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and or liabilities (includingor actions, without limitationsuits or proceedings (including governmental investigations) in respect thereof) referred to therein, legal then each Indemnifying Person under this Section 4 shall contribute to the amount paid or other expenses reasonably incurred payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (or actions in connection with investigating or defending samerespect thereof) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Indemnifying Person on the one hand and the indemnified party Indemnified Person on the other from the sale of the Registrable Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each Indemnifying Person shall contribute to such amount paid or payable by such Indemnified Person in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of each Indemnifying Person, if any, on the one hand and the Indemnified Person on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions actions, suits or proceedings (including governmental investigations) in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Company on the one hand or the indemnified party Holders on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)4. The amount paid or payable by an indemnified party Indemnified Person as a result of the losses, claims, damages or liabilities (or actions actions, suits or proceedings (including governmental proceedings) in respect thereof) referred to above in this Section 8(d) 4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party Indemnified Person in connection with investigating or defending any such action actions, suits or claimproceedings (including governmental proceedings) or claims, provided that the provisions of this Section 4 have been complied with (in all material respects) in respect of any separate counsel for such Indemnified Person. Notwithstanding the provisions of this Section 8(d)4, no Holder shall be required to contribute any amount greater than the excess of the amount by which the total received by such Holder with respect to the sale of its Registrable Securities pursuant to a Shelf Registration Statement exceeds the sum of (A) the amount paid by such Holder for such Registrable Securities plus (B) the amount of any damages which such 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 person who was not guilty of such fraudulent misrepresentation. For purposes of The Holders' obligations in this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act 4 to contribute are several in proportion to their respective obligations and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights not joint. The agreement with respect to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject contained in each case to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) 4 shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, effect regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereofHolder, and will shall survive the transfer any termination of Registrable Securitiesthis Agreement.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (CMS Energy Corp), Purchase Agreement (CMS Energy Corp)
Indemnification; Contribution. (a) The Company In connection with any registration of Registrable Securities pursuant to this Article III, Parent agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actharmless, to the fullest extent permitted by applicable lawLaw, each of the Investors and their respective Affiliates, the Investors’ Representative and each of its Affiliates, and each Person who controls an Investor or the Investors’ Representative within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and the directors, officers, employees, partners, affiliates, members, managers, trustees, shareholders, assignees and representatives of each of the foregoing (collectively, the “Indemnified Persons”) from and against any and all losses, claims, damages, liabilities liabilities, judgments, actions and expenses to which they (including reasonable attorneys’ fees and other expenses actually incurred by them in connection with investigating, defending or settling any of them may become subject insofar as such losses, claims, damages, liabilities and expenses liabilities, actions or proceedings) (“Losses”) joint or actions in respect thereof) arise several arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon (i) any untrue statement or alleged untrue statement of a material fact contained in a any part of any Registration Statement as originally filed Statement, any preliminary or final prospectus or other disclosure document used in connection with the Registrable Securities, any Issuer FWP or any amendment thereof, or supplement to any of the Disclosure Packageforegoing, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 or (in the case of the Disclosure Package, ii) any violation or alleged violation by Parent or any preliminaryof its Subsidiaries of any federal, final state, foreign or summary Prospectus common law rule or Free Writing Prospectus included regulation applicable to Parent or any of its Subsidiaries and relating to action or inaction in connection with any such registration, Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal other disclosure document or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding)Issuer FWP; provided, however, that the Company Parent will not be liable in required to indemnify any case to the extent that Indemnified Person for any such losslosses, claimclaims, damagedamages, liability liabilities, judgments, actions or expense arises (i) out of or is based upon expenses resulting from any such untrue statement or alleged omission if such untrue statement or omission was made in conformity with information with respect to such Indemnified Person or alleged omission made related Investors furnished to Parent in writing by or on behalf of such related Investors expressly for use therein.
(b) In connection with any Registration Statement, preliminary or final prospectus, or Issuer FWP, in which an Investor is participating, each such Investor agrees to indemnify, severally and not jointly, Parent, its Directors, its officers who sign such Registration Statement and each Person, if any, who controls Parent (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as the foregoing indemnity from Parent to the Investors, but only with respect to information with respect to such Investor furnished to Parent in writing by such Investor expressly for use in such Registration Statement, preliminary or final prospectus, or Issuer FWP to the extent such information is included therein in reliance upon and in conformity with written the information furnished to the Company Parent by or on behalf of any such Holder specifically Investor expressly for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion use therein; provided, however, that the total amount to be indemnified by such Holder in no event shall any Investor’s liability pursuant to this Section 8(b) shall be limited 2.08 in respect of the offering to which such loss, claim, damages, liabilities, judgments, actions or expenses relate exceed an amount equal to the net proceeds to such Investor (after deducting underwritersdeduction of all Underwriters’ discounts and commissions) received by from such Holder in offering less the offering to amount of any damages which such Registration Statement or Prospectus relatesInvestor has otherwise been required to pay by reason of such information.
(c) Promptly after receipt by an indemnified party under this In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 8 of notice of the commencement of any action2.08(a) or Section 2.08(b), such Person (hereinafter called the “indemnified party willparty”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing; provided, if a claim in respect thereof is however, that the failure to be made against give such notice shall not relieve the indemnifying party under of its obligations pursuant to this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and Agreement except to the extent such action and indemnifying party has been prejudiced in any material respect by such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve permit the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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 claim, action or proceeding 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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 (in which case, indemnifying party shall pay the institution fees and disbursements of such action; counsel related to such claim, action or proceeding). In any such claim, action or proceeding, any indemnified party will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such indemnified party (ivwithout prejudice to such indemnified party’s indemnity and other rights under the Charter, Bylaws and applicable Law, if any) unless (A) the indemnifying party shall authorize and the indemnified party have mutually agreed to employ separate counsel at the expense retention of such counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party. No party and the indemnified party and the indemnified party has been advised in writing by counsel, with a copy provided to Parent, that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them, (C) the indemnifying party shallhas failed to assume the defense of such claim and employ counsel reasonably satisfactory to the indemnified party, or (D) any such, claim, action or proceeding is a criminal or regulatory enforcement action. It is understood that the indemnifying party will not, in connection with any one claim, action or separate but substantially similar proceeding or related claims, actions or proceedings in the same jurisdiction arising out of the same general circumstances or allegationsjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the indemnified parties (in addition to any local counsel) counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (D) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. An The indemnifying party will not be liable for any settlement of any claim, action or proceeding effected without its written consent (which consent shall not be liable under unreasonably withheld, conditioned or delayed), but if such claim, action or proceeding is settled with such consent or if there has been a final non-appealable 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 will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 8 to 2.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding 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 and (ii) such indemnifying party has not reimbursed the indemnified party regarding in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnified party, effect any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding (i) in respect of which indemnification any indemnified party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and or (ii) does not include which involves the imposition of equitable remedies on the indemnified party or the imposition of any statement obligation on the indemnified party, other than as to or any a result of the imposition of financial obligations for which the indemnified person will be indemnified hereunder and provides for no admission of fault, culpability or a failure to act by or wrongdoing on behalf of any indemnified partythe part thereof.
(d) In If the event that indemnification provided for in this Section 2.08 from the indemnity provided in Section 8(a) or Section 8(b) above indemnifying party is unavailable to or insufficient to hold harmless an indemnified party for hereunder in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities damages, liabilities, judgments, actions or expenses referred to in this Section 2.08, then the indemnifying party, in lieu of indemnifying such indemnified party, will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities, judgments, actions or expenses (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified party in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of ▇▇▇▇▇▇, on the one hand hand, and the indemnified party Investors, on the other other, in connection with the statements or omissions which that resulted in such losses, claims, damages damages, liabilities, judgments, actions or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault shall of such indemnifying party and indemnified party will be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement action. The amount paid or omission. payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above will be deemed to include, subject to the limitations set forth in Section 2.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(e) The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d2.08(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d2.08(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no No Person guilty of “fraudulent misrepresentation 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. Notwithstanding the provisions of Section 2.08(d) and this Section 2.08(e), each Investor’s liability pursuant to Section 2.08(d) in respect of the offering to which such loss, claim, damages, liabilities, judgments, actions or expenses relate shall not exceed an amount equal to the proceeds to such Investor (after deduction of all Underwriters’ discounts and commissions) from such offering less the amount of any damages which such Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each Investor’s obligation to contribute pursuant to this Section 2.08 is several in proportion to the respective number of Registrable Securities held by such Investor hereunder and not joint.
(f) For purposes of this Section 82.08, each Indemnified Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriterInvestor, and each Person officer, Director and Person, if any, who controls the Company Parent within the meaning of either Section 15 of the Securities Act or Section 20(a) of the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the CompanyParent, subject in each case to the applicable terms and conditions limitations set forth in the immediately preceding paragraph. 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 Section 8(d). Notwithstanding 2.08, notify such party or parties from whom contribution may be sought, but the foregoing, omission to so notify such party or parties shall not relieve the total amount to party or parties from whom contribution may be contributed by sought from any Holder pursuant to obligation it or they may have under this Section 8(d) 2.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum liable for contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by lawaction or claim settled without its written consent; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with that such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who written consent was not guilty of fraudulent misrepresentation; and unreasonably withheld.
(iig) contribution by any seller of Registrable Securities shall be limited in amount If indemnification is available under this Section 2.08, the indemnifying party will indemnify each indemnified party to the net amount full extent provided in Section 2.08(a) and Section 2.08(b) without regard to the relative fault of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationsaid indemnifying party or indemnified party or any other equitable consideration provided for in Section 2.08(d) or Section 2.08(e).
Appears in 2 contracts
Sources: Investor Rights Agreement (Forward Air Corp), Investor Rights Agreement (Forward Air Corp)
Indemnification; Contribution. (a) The Company agrees and the Guarantors, jointly and severally, agree to indemnify and hold harmless the Initial Purchasers, each Holder of Registrable SecuritiesHolder, the Affiliateseach Participating Broker-Dealer, directors, officers, employees, members, managers and agents of each such Holder and each Person who participates as an underwriter (any such Person being an “Underwriter”) and each Person, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense whatsoever, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed (or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, 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 not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and agrees to reimburse each such indemnified partyexpense whatsoever, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that of the aggregate amount paid in settlement of any such losslitigation, claimor any investigation or proceeding by any governmental agency or body, damagecommenced or threatened, liability or expense arises (i) out of or is any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 4(d) below) any such settlement is effected with the written consent of the Company and the Guarantors; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made therein in reliance upon and in conformity with written information furnished to the Company and the Guarantors by the Holder, Participating Broker-Dealer or on behalf of Underwriter expressly for use in a Registration Statement (or any such Holder specifically for inclusion therein including, without limitation, amendment thereto) or any notice and questionnaire, Prospectus (or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveamendment or supplement thereto).
(b) Each Holder severally (and severally, but not jointly) , agrees to indemnify and hold harmless the Company Company, the Guarantors, the Initial Purchasers, each Underwriter and the other selling Holders, and each of its Affiliatestheir respective directors and officers, directors, employees, members, managers and agents and each Person Person, if any, who controls the Company Company, the Guarantors, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, to the fullest extent permitted by applicable law, from and against any and all lossesloss, claimsliability, damages claim, damage and expense described in the indemnity contained in Section 4(a) hereof, as incurred, but only with respect to untrue statements or liabilities to which they or any of them may become subject insofar as such lossesomissions, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained statements or omissions, made in a the Shelf Registration Statement as originally filed (or in any amendment thereof, or in the Disclosure Package thereto) or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, therein (or in any amendment thereof or supplement thereto, or arise out of or are based ) in reliance upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (and in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any conformity with written information relating with respect to such Holder furnished to the Company by or on behalf of such Holder specifically expressly for inclusion thereinuse in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto); provided, however, that the total amount to be indemnified by no such Holder pursuant to this Section 8(b) shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Registrable Securities pursuant to which such Shelf Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any action, such indemnified party will, if a claim action or proceeding commenced against it in respect thereof is to of which indemnity may be made against the indemnifying party under this Section 8sought hereunder, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the an indemnifying party (i) will shall not relieve such indemnifying party 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 under paragraph (a) or (b) above unless and to which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the extent defense of such action and such failure results in material prejudice action; provided, however, that counsel to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and shall not (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, ) also be counsel to the indemnifying indemnified party), and, except as provided in the next sentence, after notice from . In no event shall the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not or parties be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs fees and expenses of such more than one counsel (in addition to any local counsel) separate from their own 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 for all 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances. No indemnifying party shall, be liable for without the fees and expenses prior written consent of more than one separate firm of attorneys (in addition to any local counsel) for all the indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 4 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If at any time an indemnified party shall have requested an indemnifying party to reimburse the event indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the indemnity nature contemplated by Section 4(a)(ii) 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.
(e) If the indemnification provided for in this Section 8(a) or Section 8(b) above 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (includingexpenses incurred by such indemnified party, without limitationas incurred, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company and the Guarantors on the one hand and the indemnified party Holders and the Initial Purchasers each on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Company and the Guarantors on the one hand and the Holders and the Initial Purchasers each 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 omission to state a material fact relates to information supplied by the indemnifying party on Company and the one hand Guarantors, the Holders or the indemnified party on the other Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company, the Guarantors, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)4. The aggregate amount paid or payable of losses, liabilities, claims, damages 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 Section 8(d) 4 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 Section 8(d)4, no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Securities sold by it were offered exceeds the amount of any damages which such Initial Purchaser 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. For purposes of this Section 84, each Person Person, if any, who controls any an Initial Purchaser or Holder of Registrable Securities, agent or underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Initial Purchaser or Holder, agent or underwriter, and each Person director of the Company and such Guarantor, as the case may be, and each Person, if any, who controls the Company and such Guarantor, as the case may be, within the meaning of either Section 15 of the Securities 1933 Act or the Exchange Act and each officer and director Section 20 of the Company 1934 Act shall have the same rights to contribution as the Company, subject in each case . The Initial Purchasers’ respective obligations to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 4 are several in proportion to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder principal amount of Securities set forth opposite their respective names in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 Schedule B to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was Purchase Agreement and not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationjoint.
Appears in 2 contracts
Sources: Registration Rights Agreement (Sonic Automotive Clearwater Inc), Registration Rights Agreement (Sre Maryland 2 LLC)
Indemnification; Contribution. (a) The Company shall, and it hereby agrees to to, indemnify and hold harmless each Holder of Registrable SecuritiesParticipating Investor and its partners, the Affiliatesmembers, officers, directors, employees and controlling Persons, if any, and each underwriter, its partners, officers, employeesdirectors, membersemployees and controlling Persons, managers and agents if any, in any offering or sale of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange ActCommon Shares, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, damages or liabilities and expenses to which they or any of them each such indemnified party may become subject subject, insofar as such losses, claims, damagesdamages or liabilities, liabilities and expenses (or actions or proceedings in respect thereof) , including any amounts paid in settlement as provided herein (collectively, "Claims"), arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Packageregistration statement, or any preliminary, preliminary or final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus contained therein, or in any amendment thereof or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any 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 in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse each Participating Investor or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by it in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by such Participating Investor or any underwriter expressly for use therein.
(b) Each Participating Investor shall, and hereby agrees to (1) indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Common Shares, against any Claims to which each such indemnified party may become subject, insofar as such Claims arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon 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 Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse in each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case only to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Company by such Participating Investor expressly for use therein, and (2) reimburse the Company for any legal or on behalf of other out-of-pocket expenses reasonably incurred by the Company in connection with investigating or defending any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesClaim.
(c) Promptly after receipt by an indemnified party under this Section 8 4.7(a) or Section 4.7(b) of written notice of the commencement of any actionaction or proceeding for which indemnification under Section 4.7(a) or Section 4.7(b) may be requested, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, shall notify the indemnifying party in writing of the commencement thereof; of such action or proceeding, but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above unless and which it may have to the extent any indemnified party in respect of such action and such failure results in material prejudice to or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, no event shall such omission relieve the indemnifying party from any obligations other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party other than and it shall notify an indemnifying party of the indemnification obligation provided in paragraph (a) or (b) above. The commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and If 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 inis not entitled to, or targets ofelects not to, any such action include both assume the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may defense of a claim, it will not be legal defenses available obligated 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys (in addition counsel for each indemnified party with respect to such claim. The indemnifying party will not be subject to any local counsel) liability for all indemnified parties. An indemnifying party any settlement made without its consent, which consent shall not be liable under this Section 8 to any indemnified unreasonably withheld or delayed. No indemnifying party regarding any settlement or compromise or shall, without the prior written 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 settlementparty, compromise or consent is consented to by such 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 agreement with respect to any action or compromise proceeding in respect of which indemnification is sought under Section 4.7(a) or Section 4.7(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent or settlement or compromise (i) includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter in respect of such proceeding claim or litigation and (ii) does not include subject the indemnified party to any statement as to material injunctive relief or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyother material equitable remedy.
(d) In Each Participating Investor and the event Company agree that if, for any reason, the indemnity provided in Section 8(aindemnification provisions contemplated by Sections 4.7(a) or Section 8(b4.7(b) above is hereof are unavailable to or are insufficient to hold harmless an indemnified party for in respect of any reasonClaims referred to therein (other than as a result of the provisos thereto), then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative fault of and benefits derived by the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)hand, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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) Claims referred to above in this Section 8(d) shall be deemed to include (subject to the limitations set forth in Section 4.7(c) hereof) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action action, proceeding or claim. Notwithstanding the provisions of this Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Shareholders Agreement (Arch Capital Group LTD), Shareholders Agreement (H&f Corp Investors Iv Bermuda LTD)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless harmless, to the extent permitted by law, each (i) Eligible Holder of Registrable Securities, (ii) each Person that controls (within the Affiliates, meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) such Eligible Holder and (iii) the respective directors, officers, partners, employees, memberslegal counsel, managers accountants and agents of each such Eligible Holder and each controlling Person who controls any such (collectively, “Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, Indemnified Parties”) from and against any and all losses, claims, damages, liabilities and expenses, including reasonable attorney’s fees and disbursements and reasonable expenses to which they or of investigation (collectively, “Losses”), caused by any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofA) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, Prospectus or in preliminary Prospectus or any amendment thereof or supplement thereto, thereto or arise out of any Free Writing Prospectus or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified partyor (B) violation or alleged violation by the Company of the Securities Act, as incurredthe Exchange Act, for any legal applicable state securities law or other expenses reasonably incurred by them in connection with investigating any rule or defending regulation promulgated under the Securities Act, the Exchange Act or any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding)applicable state securities law; provided, however, that the Company will shall not be liable to any Holder Indemnified Party for any Losses that are (x) caused by or contained in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished in writing to the Company by or on behalf of a Holder Indemnified Party or any underwriter expressly for use in any Registration Statement, Prospectus or preliminary Prospectus or amendment or supplement thereto or any Free Writing Prospectus or (y) caused by such Holder specifically for inclusion therein includingIndemnified Party’s or any underwriter’s failure to deliver a copy of the Registration Statement, without limitationProspectus or preliminary Prospectus or amendment or supplement thereto or any Free Writing Prospectus after the Company has furnished such Holder Indemnified Party or such underwriter in a timely manner with a sufficient number of copies of the same. In connection with an Underwritten Offering, any notice the Company shall indemnify such underwriters, each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act and questionnaireSection 20 of the Exchange Act) and each of their respective directors, or (ii) out officers, partners and employees to the same extent as provided above with respect to the indemnification of sales the Eligible Holders of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveSecurities.
(b) Each Holder severally (In connection with any Registration Statement in which a holder of Registrable Securities is participating, each such holder shall furnish to the Company in writing such information and not jointly) agrees to affidavits as the Company reasonably requests for use in connection with any such Registration Statement, Prospectus or preliminary Prospectus or amendment or supplement thereto or any Free Writing Prospectus and shall indemnify and hold harmless harmless, to the Company and each of its Affiliatesextent permitted by law, directors(i) the Company, employees, members, managers and agents and (ii) each Person who controls the Company (within the meaning of either Section 15 of the Securities Act or and Section 20 of the Exchange Act) the Company, to (iii) each other holder of Registrable Securities participating in any such offering and (iv) the fullest extent permitted by applicable lawrespective directors, officers, partners, employees, legal counsel, accountants and agents of each of the Persons specified in the foregoing clauses (i) through (iii), from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon Losses caused by any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, Prospectus or in preliminary Prospectus or any amendment thereof or supplement thereto, thereto or arise out of any Free Writing Prospectus or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, extent that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder or affidavit so furnished to the Company in writing by or on behalf of such Holder specifically holder expressly for inclusion thereinuse in such Registration Statement, Prospectus, preliminary Prospectus or amendment or supplement thereto or such Free Writing Prospectus; provided, however, provided that the total amount obligation to indemnify shall be indemnified by such Holder pursuant to this Section 8(b) individual, not joint and several, for each holder and shall be limited to the net amount of proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in holder from the offering sale of Registrable Securities pursuant to which such Registration Statement Statement. In connection with an Underwritten Offering by the Company or Prospectus relatesany holder of the Company’s securities other than an Eligible Holder, a holder of Registrable Securities participating therein shall indemnify such underwriters, each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and each of their respective directors, officers, partners and employees to the same extent as provided above with respect to the indemnification of the Company and the other holders.
(c) Promptly after receipt by an indemnified party under this Section 8 of Any Person entitled to indemnification hereunder shall (i) give prompt written notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but any claim with respect to which such Person seeks indemnification (provided that the failure so to notify the indemnifying party (i) will give prompt notice shall not relieve it from liability under paragraph (a) or (b) above unless and impair any Person’s right to indemnification hereunder to the extent such action and such failure results in material prejudice to has not prejudiced the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; party) and (ii) will notunless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, in any event, relieve the permit such indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, of such claim 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, except as provided in the next sentence, after notice from the indemnifying party to . If such indemnified party of its election to so assume the defense thereofis assumed, the indemnifying party shall not be liable subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one (1) counsel (plus one (1) local counsel in each applicable jurisdiction) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party for any legal expenses of other counsel or and any other expenses subsequently incurred by of such indemnified party in connection parties with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the respect to such claim.
(d) The indemnified party shall have the right to employ its own separate counsel (in any such action and one local counsel)participate in the defense thereof, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be paid by the indemnified party unless (ix) the use of counsel chosen by the indemnifying party agrees to represent pay the same, (y) the indemnifying party fails to assume the defense of such action with counsel reasonably satisfactory to the indemnified party would present such counsel with a conflict of interest; or (iiz) the actual or potential defendants in, or targets of, any such action include both indemnified party reasonably believes that the joint representation of the indemnified party and the indemnifying any other 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 in such proceeding (including the indemnifying party; ) would be inappropriate under applicable standards of professional conduct. In the case of clause (iiiy) above and (z) above, the indemnifying party shall not have employed counsel satisfactory the right to assume the indemnified party to represent the indemnified party within a reasonable time after notice of the institution defense of such action; or (iv) the indemnifying party shall authorize the action on behalf of such indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in without the same jurisdiction arising out written consent of the same general circumstances or allegationsindemnified party, be liable for effect the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement or compromise of, or consent to the entry of any judgment with respect to to, any pending or threatened claim, action, suit action or proceeding claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are party is an actual or potential parties party to such claim action or actionclaim) unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i1) includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter arising out of such proceeding action or claim and (ii2) does not include any a statement as to to, or any an admission of of, fault, culpability or a failure to act by or on behalf of any indemnified party. The rights afforded to any indemnified party hereunder shall be in addition to any rights that such indemnified party may have at common law, by separate agreement or otherwise.
(de) In The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified party or any Person that controls (within the event that meaning of Section 15 of the indemnity provided in Securities Act and Section 8(a20 of the Exchange Act) or such indemnified party and the respective directors, officers, partners, employees, legal counsel, accountants and agents of such indemnified party and controlling Person and shall survive the transfer of Registrable Securities.
(f) If the indemnification required by this Section 8(b) above 7 from the indemnifying party is unavailable to or insufficient to hold harmless an indemnified party for hereunder in respect of any reasonLosses, then each applicable referred to in this Section 7:
(i) The indemnifying party agrees to party, in lieu of indemnifying such indemnified party, shall contribute to the aggregate lossesamount paid or payable by such indemnified party as a result of such Losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions 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 fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any action in question has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionaction in question. The amount paid or payable by a party as a result of the Losses shall be deemed to include, subject to the limitations set forth in Section 7(a) and Section 7(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d7(f) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d7(f)(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (DEX ONE Corp), Registration Rights Agreement (R H Donnelley Corp)
Indemnification; Contribution. (a) The Company agrees Guarantor and the Issuer agree to indemnify indemnify, defend and hold harmless each Holder of Registrable SecuritiesInitial Purchaser, the Affiliateseach Holder, directorseach person (a “Controlling Person”), officersif any, employees, members, managers and agents of each such Holder and each Person who controls any such Initial Purchaser or Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, to directors, partners, employees, representatives and agents of any Initial Purchaser, the fullest extent permitted by applicable lawHolders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified partythe Guarantor and the Issuer shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that the Company will Guarantor and the Issuer shall not be liable required to provide any indemnification pursuant to this Section 6(a) in any such case to the extent that insofar as any such loss, claimdamage, expense, liability, claim or action arises out of or is based upon (i) any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of an Initial Purchaser or a Holder to the Guarantor expressly for use in, any Shelf Registration Statement or any Prospectus or (ii) a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities by an Indemnified Party during a Suspension Period, provided such Indemnified Party received, prior to such disposition, a Suspension Notice with respect to such Suspension Period; provided further, however, that this indemnity agreement will be in addition to any liability which the Guarantor and the Issuer may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Guarantor and the Issuer, each of its directors, officers, employees, representatives, agents and any person who controls the Guarantor and the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Guarantor Indemnified Party”) from and against any loss, damage, liability expense, liability, claim or expense any actions in respect thereof (including the reasonable cost of investigation) which such Guarantor Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (iA) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Guarantor expressly for use in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein to state a material fact in reliance upon and in conformity connection with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein includingInformation, without limitationwhich material fact was not contained in such Holder Information, and which material fact was either required to be stated in any notice and questionnaireShelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading, (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Guarantor shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), or (iiC) out of sales a public sale of Registrable Securities made during a Suspension Period after notice is given by such Holder without delivery, if required by the Securities Act, of the most recent applicable Prospectus provided to such Holder by the Guarantor pursuant to Section 2(e)(ii3(i) hereofor Section 2(d)(i)(C), provided the Guarantor shall have theretofore provided such Holder with copies of such Prospectus in a timely manner so as to permit such delivery; and, subject to the limitation set forth in the immediately preceding clause, each Holder shall reimburse, as incurred, the Guarantor and the Issuer for any legal or other expenses reasonably incurred by the Guarantor and the Issuer or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which the Company such Holder may otherwise havehave to the Guarantor and the Issuer or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(bc) Each Holder severally If any action, suit or proceeding (and not jointlyeach, a “Proceeding”) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and is brought against any and all lossesperson in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), claims, damages or liabilities to which they or any of them such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation be sought (the “Indemnifying Party”) in writing of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf institution of such Holder specifically for inclusion thereinProceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount omission to be indemnified by so notify such Holder pursuant to this Section 8(b) Indemnifying Party shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that liability which it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory may have to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationotherwise. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, fault or culpability or a failure to act by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a6 is unavailable to an Indemnified Party under Section 6(a) or Section 8(b) above is unavailable to 6(b), or insufficient to hold harmless an indemnified party for such Indemnified Party harmless, in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Guarantor and the Issuer, on the one hand, and by the Holders or the Initial Purchasers, on the other hand, from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the indemnifying party Guarantor and the Issuer, on the one hand hand, and of the indemnified party Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Guarantor and the Issuer, on the one hand, and of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Guarantor and the one hand Issuer or by the Holders or the indemnified party on the other Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Guarantor, the Issuer, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 thereof6(d) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or the Company Initial Purchasers or any of person controlling any Holder or Initial Purchaser, or the officersGuarantor, or the Issuer, or the Guarantor’s or the Issuer’s officers or directors or any person controlling Persons referred to in this Section 8 hereof, the Guarantor or the Issuer and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Medical Properties Trust Inc), Registration Rights Agreement (Medical Properties Trust Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder Stockholders and each Person Person, if any, who controls any such Holder the Stockholders within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, from and a “Stockholder Indemnified Person”) against any and all lossesloss, claimsliability, damagesclaim and damage, liabilities and expenses to which they or any of them may become subject insofar as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed (or in any amendment thereofthereto), or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 in order to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementtherein, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal misleading or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) arising out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, preliminary prospectus or in any Prospectus (or any amendment thereof or supplement thereto) or 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 therefrom of a material fact required to be stated therein or necessary in order to make the statements therein (therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse any Stockholder Indemnified Person as promptly as practicable upon demand for any legal or other expenses reasonably incurred by such Stockholder Indemnified Person in connection with investigating, defending or paying any such loss, claim, damage, liability or action; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim or damage to the extent, but only to the extent, that extent arising out of any such untrue statement or omission or alleged untrue statement or omission or alleged omission is contained made in any written reliance upon and in conformity with information relating to such Holder furnished to the Company by or on behalf of such Holder specifically the Stockholders or any Person, if any, who controls the Stockholders for inclusion therein; provideduse in any Registration Statement (or any amendment thereto), howeveror any preliminary prospectus or Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto).
(b) The Stockholders agree, that jointly and severally, to indemnify and hold harmless the total amount to be indemnified by such Holder pursuant to Company, 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 and all loss, liability, claim and damage described in the indemnity contained in subsection (a) of this Section 8(b6, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in any Registration Statement (or any amendment thereto) shall be limited or any preliminary prospectus or Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished to the net proceeds (after deducting underwriters’ discounts and commissions) received Company by such Holder or on behalf of the Stockholders for use in the offering to which such Registration Statement (or any amendment thereto) or such preliminary prospectus or Prospectus relates(or any amendment or supplement thereto).
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any actionaction or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not 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 these indemnity provisions. In case any such action shall be brought against any indemnified party will, if a claim in respect thereof is to be made against the and it shall notify an indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent , such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party under this Section 6 for any legal expenses of other counsel or any other expenses expenses, in each case subsequently incurred by such indemnified party party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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 partythereof. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in without the same jurisdiction arising out prior written consent of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may be is sought hereunder under this Section 6 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an . No indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (includingshall, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault prior written consent of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements party, effect any settlement of any commenced or omissions which resulted in such lossesthreatened litigation, claimsinvestigation, damages proceeding or liabilities (or actions claim in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationsought hereunder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Stinehart William Jr), Registration Rights Agreement (Tribune Co)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Select Energy Services, Inc.), Registration Rights Agreement (Select Energy Services, Inc.)
Indemnification; Contribution. (a) The In connection with any registration of Registrable Securities pursuant to Section 6.01 or Section 6.02 hereof, the Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actharmless, to the fullest extent permitted by applicable lawLaw, from each Participating Stockholder, their Affiliates, directors, officers and stockholders and each Person who controls each such Participating Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) against any and all losses, claims, damages, liabilities and expenses to which they expenses, joint or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses several (or actions in respect thereofincluding reasonable attorneys’ fees) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon caused by any untrue statement or alleged untrue statement of a material fact contained in a any part of any Registration Statement as originally filed Statement, any preliminary or final prospectus used in connection with the Registrable Securities or any amendment thereof, or the Disclosure PackageIssuer FWP, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementa prospectus, in the light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, provided that the Company will not be liable in required to indemnify any case to the extent that Indemnified Persons for any such losslosses, claimclaims, damagedamages, liability liabilities or expense arises (i) out of or is based upon expenses resulting from any such untrue statement or alleged omission if such untrue statement or omission or alleged omission was made therein in reliance upon on and in conformity with written any information with respect to any Indemnified Person furnished to the Company in writing by or on behalf of any such Holder specifically a Participating Stockholder expressly for inclusion therein includinguse therein. In connection with an underwritten offering, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (will indemnify each Underwriter, the officers and not jointly) agrees to indemnify and hold harmless the Company and each directors of its Affiliatessuch Underwriter, directors, employees, members, managers and agents and each Person who controls the Company such Underwriter (within the meaning of either the Securities Act or the Exchange Act, ) to the fullest same extent permitted as provided above with respect to the indemnification of the Participating Stockholders; provided that such Underwriter agrees to indemnify the Company to the same extent as provided below with respect to the indemnification of the Company by applicable lawthe Participating Stockholders.
(b) In connection with any Registration Statement, from preliminary or final prospectus or Issuer FWP, each Participating Stockholder, severally and against any not jointly. agrees to indemnify the Company, the Directors, its officers who sign such Registration Statement and all losseseach Person, claimsif any, damages or liabilities to which they or any who controls the Company (within the meaning of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation either Section 15 of the Securities Act, Exchange Act or state securities lawsSection 20 of the Exchange Act) to the same extent as the foregoing indemnity from the Company to the Participating Stockholders, upon but only with respect to information with respect to any untrue statement or alleged untrue statement of a material fact contained Indemnified Person furnished to the Company in a Registration Statement as originally filed or writing by such Participating Stockholder expressly for use in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, preliminary or in any amendment thereof or supplement theretofinal 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 the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesIssuer FWP.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of In case any action, such indemnified party will, if a claim proceeding (including any governmental investigation) will be instituted involving any Person in respect thereof is of which indemnity may be sought pursuant to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a6.08(a) or (b), such Person (hereinafter called the “indemnified party”) above unless will promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will notparty, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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 upon request of the indemnified party, be will retain counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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 and will pay the institution fees and disbursements of such actioncounsel related to such proceeding; or provided that failure to so notify an indemnifying party shall not relieve it from any liability which it may have hereunder, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice. In any such proceeding, any indemnified party will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such indemnified party unless (ivi) the indemnifying party shall authorize and the indemnified party will have mutually agreed to employ separate the retention of such counsel at or (ii) the expense of named parties to any such proceeding (including any impleaded parties) include both the indemnifying partyparty and the indemnified party and the indemnified party will have been advised in writing by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them. No It is understood that the indemnifying party shallwill not, in connection with any one action or separate but substantially similar proceeding or related actions proceedings in the same jurisdiction arising out of the same general circumstances or allegationsjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such indemnified parties, and that all such reasonable fees and expenses will be reimbursed as they are incurred. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. An The indemnifying party shall will not be liable under for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there has been 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 will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 8 to 6.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 15 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party will not have reimbursed the indemnified party regarding in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnified party, effect any settlement 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 any indemnified party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) is of a claim for monetary damages only, such claim has been settled by the payment of money only and such settlement 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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyproceeding.
(d) In If the event that indemnification provided for in this Section 6.08 from the indemnity provided in Section 8(a) or Section 8(b) above indemnifying party is unavailable to or insufficient to hold harmless an indemnified party for hereunder in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (includingor expenses referred to in this Section 6.08, without limitationthen the indemnifying party, legal in lieu of indemnifying such indemnified party, will contribute to the amount paid or other payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which actions 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 fault shall of such indemnifying party and indemnified party will be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been made by, or relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement action. The amount paid or omission. payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above will be deemed to include, subject to the limitations set forth in Section 6.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(e) The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d6.08(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d6.08(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no No Person guilty of “fraudulent misrepresentation 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(ef) The Notwithstanding the provisions of this Section 8 will remain 6.08, no Participating Stockholder shall be required to make any indemnification or contribution payment, in full force and effectthe aggregate, regardless of in any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any amount in excess of the officers, directors or controlling Persons referred amount of the net proceeds received by such Participating Stockholder with respect to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(fg) To the extent any If indemnification by an indemnifying party is prohibited or limited by lawavailable under this Section 6.08, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 will indemnify each indemnified party to the fullest full extent permitted by law; provided, however, that: (iprovided in Sections 6.08(a) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (iib) contribution by any seller of Registrable Securities shall be limited in amount without regard to the net amount relative fault of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationsaid indemnifying party or indemnified party or any other equitable consideration provided for in Section 6.08(d) or (e).
Appears in 2 contracts
Sources: Stockholder Agreement, Stockholder Agreement (Realnetworks Inc)
Indemnification; Contribution. (a) The Company shall, and hereby agrees to to, indemnify and hold harmless each Participating Holder of Registrable Securitiesand its partners, the Affiliatesmembers, directors, officers, employees, membersagents and controlling Persons, managers and agents if any, in any offering or sale of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, Participating Shares pursuant to the fullest extent permitted by applicable lawShelf Registration Statement, from and against any and all losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable fees of counsel) (collectively, “Claims”) to which they or any of them each such indemnified party may become subject subject, insofar as such lossesClaims (including any amounts paid in settlement effected with the consent of the Company as provided herein), claims, damages, liabilities and expenses (or actions or proceedings in respect thereof, (i) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Shelf Registration Statement, or in any Prospectus or preliminary Prospectus contained therein with respect to Participating Shares, or any amendment thereof or supplement thereto, or any document incorporated by reference therein, or (ii) arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in each case in light of the circumstances in which they were made, not misleading; provided that the Company shall not be liable to any such Participating Holder in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Shelf Registration Statement, or Prospectus or preliminary Prospectus relating to the Participating Shares, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Participating Holder with respect to such Participating Holder expressly for use therein, or by such Participating Holder’s failure to furnish the Company, upon the Company’s reasonable request, with the information with respect to such Participating Holder, or such Participating Holder’s intended method of distribution, that is the subject of the untrue statement or omission, or if such Participating Holder sold securities to the Person alleging such Claims without sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable Prospectus (excluding any documents incorporated by reference therein) or of the applicable Prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Company had previously furnished copies thereof to the Participating Holders, and such Prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in the Shelf Registration Statement.
(b) Each Participating Holder, severally and not jointly, shall, and hereby agrees to, indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, in any offering or sale of Participating Shares pursuant to the Shelf Registration Statement, against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement effected with the consent of such Participating Holder as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement or any Prospectus or preliminary Prospectus contained therein with respect to the Participating Shares, or any document incorporated by reference therein, 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 Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse in each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case only to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Participating Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating with respect to such Participating Holder furnished to the Company by or on behalf of such Holder specifically expressly for inclusion use therein; provided, howeverthat in no event shall any indemnity under this Section 2.05(b), that when combined with any contribution under Section 2.05(d) exceed the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to proceeds from the net proceeds (after deducting underwriters’ discounts and commissions) offering received by such Participating Holder unless such liability arises out of or is based on Fraud (as defined in the offering to which Merger Agreement) or Willful Breach (as defined in the Merger Agreement) by such Registration Statement or Prospectus relatesParticipating Holder.
(c) Promptly after receipt by an indemnified party under this Section 8 2.05(a) or Section 2.05(b) of written notice of the commencement of any actionaction or proceeding for which indemnification under Section 2.05(a) or Section 2.05(b) may be requested, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, shall notify the such indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent of such action and or proceeding. In case any such failure results in material prejudice to the indemnifying action or proceeding shall be brought against any indemnified party and forfeiture by the it notifies an indemnifying party of substantial rights and defenses; and (ii) will notthe commencement thereof, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding ; provided, however, that (i) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding within twenty (20) days after receiving notice from such indemnified party that the indemnified party believes it has failed to do so; (ii) if such indemnified party who is a defendant in any action or proceeding which is also brought against the indemnifying party reasonably shall have concluded that there may be one or more legal defenses available to such indemnified party which are not available to the indemnifying party’s rights ; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in the prior sentenceany such case, the indemnified party shall have the right to employ assume or continue its own defense as set forth above (but with no more than one firm of counsel (and one local counsel), for all indemnified parties) and the indemnifying party shall bear the be liable for any expenses therefor (including, without limitation, any such reasonable counsel’s fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by ). If the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants inis not entitled to, or targets ofelects not to, any such action include both assume the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may defense of a claim, it will not be legal defenses available obligated 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) counsel for all indemnified parties. An indemnifying party shall not be liable under this Section 8 to any each indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to such claim. The indemnifying party will not be subject to any pending liability for any settlement made without its consent (not to be unreasonably withheld, conditioned or threatened claimdelayed). No indemnifying party shall, action, suit or proceeding in respect without the prior written consent 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 settlementparty, compromise or consent is consented to by such 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 agreement with respect to any action or compromise proceeding in respect of which indemnification is sought under Section 2.05(a) or Section 2.05(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent or settlement or compromise (i) is solely for monetary damages and includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter in respect of such proceeding claim or litigation, and (ii) does not include any a statement as to or any admission of fault, culpability or a failure to act act, by or on behalf of any the indemnified party.
(d) In The Participating Holders and the event Company agree that if, for any reason, the indemnity provided in indemnification provisions contemplated by Section 8(a2.05(a) or Section 8(b2.05(b) above is hereof are unavailable to or are insufficient to hold harmless an indemnified party for in respect of any reasonClaims referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection hand, with respect to 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 considerationsapplicable offering of securities. The relative fault of such indemnifying party and 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 omission to state a material fact relates to information supplied by the such indemnifying party on the one hand or the by such indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the first sentence of this Section 2.05(d) is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative fault, but also the relative benefits of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 8(d2.05(d) were to be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 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 Section 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 preceding sentences of this Section 8(d2.05(d). Notwithstanding any of the foregoing, in no event shall any contribution by any Participating Holder under this Section 2.05(d), no when combined with any amounts payable or paid by such Participating Holder under Section 2.05(b), exceed the total proceeds from the offering received by such Participating Holder, unless such liability arises out of or is based on Fraud (as defined in the Merger Agreement) or Willful Breach (as defined in the Merger Agreement) by such Participating Holder. 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement, Registration Rights Agreement (Alphabet Inc.)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actshall indemnify, to the fullest extent permitted by applicable law, from each holder of Registrable Securities, its officers, directors, partners, employees and agents, if any, and each Person, if any, who controls such holder within the meaning of Section 15 of the Securities Act, against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions proceedings in respect thereof) arise out of and expenses (under the Securities Act or are based upon common law or otherwise), joint or several, resulting from any violation by the Company of the provisions of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement any registration statement or prospectus (and as originally filed amended or in any amendment thereof, supplemented if amended or the Disclosure Package, supplemented) or any preliminary, final preliminary prospectus or summary Prospectus or Free Writing Prospectus included in caused by any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus, in light of the circumstances under which they were made) not misleading, and except to the extent that such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses are caused by any untrue statement or alleged untrue statement contained in or by any omission or alleged omission from information concerning any holder furnished in writing to the Company by such holder expressly for use therein. If the Public Offering pursuant to any registration statement provided for under this Article II is made through underwriters, no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence. If the Public Offering pursuant to any registration statement provided for under this Article II is made through underwriters, the Company agrees to reimburse enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such indemnified party, underwriters within the meaning of Section 15 of the Securities Act to the same extent as incurred, for any legal or other expenses reasonably incurred by them in connection herein before provided with investigating or defending respect to the indemnification of the holders of Registrable Securities; provided that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or action (whether proceedings in respect thereof) or not the indemnified party expense for which indemnification is claimed results from such underwriter's failure to send or give a party to any proceeding); provided, however, that the Company will not be liable in any case copy of an amended or supplemented final prospectus to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such Person asserting an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished at or prior to the Company by or on behalf written confirmation of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales the sale of Registrable Securities made during to such Person if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus a Suspension Period after notice is given pursuant reasonable time prior to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise havesuch written confirmation.
(b) Each Holder In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder, severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Actshall indemnify, to the fullest extent permitted by applicable law, from the Company, each underwriter and against any their respective officers, directors, employees and all lossesagents, claimsif any, damages and each Person, if any, who controls the Company or liabilities to which they or any such underwriter within the meaning of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation Section 15 of the Securities Act, Exchange Act against any losses, claims, damages, liabilities (or state securities laws, upon proceedings in respect thereof) and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereoffact, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof 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 in the registration statement or prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, extent that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written or such omission is from information relating to so concerning a holder furnished in writing by such Holder furnished to the Company by or on behalf of such Holder specifically holder expressly for inclusion use therein; provided, however, provided that the total amount to be indemnified by such Holder pursuant to this Section 8(b) holder's obligations hereunder shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) received by to such Holder in holder of the offering Registrable Securities sold pursuant to which such Registration Statement or Prospectus relatesregistration statement.
(c) Promptly after receipt by an indemnified party Any Person entitled to indemnification under the provisions of this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party 2.7 shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice give prompt notice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; any claim with respect to which it seeks indemnification and (ii) will notunless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, in any event, relieve the permit such indemnifying party from any obligations to any assume the defense of such claim, with counsel reasonably satisfactory to the indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The party; and if such defense is so assumed, such indemnifying party shall be entitled to participate therein and, not enter into any settlement without the consent of the indemnified party if such settlement attributes liability to the extent that it shall wish, jointly with any other indemnified party and such indemnifying party similarly notifiedshall not be subject to any liability for any settlement made without its consent (which shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article II shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense thereofof a claim, 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable obligated to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate counsel or firm of attorneys (in addition to any local counsel) counsel for all parties indemnified parties. An by such indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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) claim, unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense reasonable judgment of any such claim or litigation, shall, except with the consent indemnified party a conflict of each interest may exist between such indemnified party, consent to entry of party and any judgment or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release other of such indemnified party from all liability on claims that are the subject matter of parties in respect to such proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyclaim.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party If for any reasonreason the foregoing indemnity is unavailable, then each applicable the indemnifying party agrees to shall contribute to the aggregate amount paid or payable by the indemnified party as a result of such losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the such indemnifying party on the one hand and the indemnified party on the other in connection with other. Notwithstanding the statements or omissions which resulted in such lossesforegoing, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders no holder of Registrable Securities or shall be required to contribute any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account amount in excess of the equitable considerations referred amount such holder would have been required to above in this Section 8(d). The amount paid or payable by pay to an indemnified party as a result of if the losses, claims, damages or liabilities (or actions in respect thereofindemnity under Section 2.7(b) referred to above in this Section 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 claimwas available. Notwithstanding the provisions of this Section 8(d), no No Person guilty of fraudulent misrepresentation (within the meaning of Section section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent The obligation of any such Holder, agent or underwriter shall have the same rights Person to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) 2.7 shall be limited to the net proceeds (after deducting underwriters’ discounts several and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesnot joint.
(e) The An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 8 will 2.7 to or for the account of the indemnified party from time to time promptly upon receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in this Section 2.7 shall remain in full force and effect, effect regardless of any investigation made by or on behalf of a participating holder of Registrable Securities, its officers, directors, agents or any Holder Person, if any, who controls such holder as aforesaid, and shall survive the Transfer of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from holder and the sale termination of such Registrable Securities pursuant to such Shelf Registrationthis Agreement for any reason.
Appears in 2 contracts
Sources: Registration Rights Agreement (Global Power Equipment Group Inc/), Registration Rights Agreement (Global Power Equipment Group Inc/)
Indemnification; Contribution. (a) The Company EchoStar shall, and it hereby agrees to to, indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, Investors and their respective directors, officers, employees, membersAffiliates and controlling Persons, managers and agents of each such Holder if any, and each Person who controls underwriter, its partners, directors, officers, employees and controlling Persons, if any, in any such Holder within offering or sale of the meaning of either the Securities Act or the Exchange ActRegistrable Securities, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable fees of counsel) (collectively, “Claims”) to which they or any of them each such indemnified party may become subject subject, insofar as such lossesClaims (including any amounts paid in settlement effected with the consent of EchoStar as provided herein), claims, damages, liabilities and expenses (or actions or proceedings in respect thereof) , arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Packageregistration statement, or any preliminary, preliminary or final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus contained therein, or in any amendment thereof or supplement thereto, any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any document incorporated by reference therein, or arise out of or are based upon any 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 in which they were made, not misleading, and EchoStar shall, and it hereby agrees to, reimburse periodically the Investors or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such Claims; provided, however, that EchoStar shall not be liable to any such Person in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made (i) in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to EchoStar by the Investors expressly for use therein, (ii) in any prospectus used after such time as EchoStar advised such Investor in writing that the filing of a post-effective amendment or supplement thereto was required, other than such prospectus as so amended or supplemented or (iii) in any prospectus used after such time as the obligation of EchoStar to keep such prospectus effective and current shall have expired.
(b) The Investors shall, and hereby agrees to, indemnify and hold harmless EchoStar, its directors, officers, employees, Affiliates and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Securities, against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement effected with the consent of the Investors as provided herein), or actions or proceedings in *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon 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 Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse in each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case only to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to EchoStar by the Company Investors expressly for use therein, and periodically reimburse such indemnified Person for any legal or other out-of-pocket expenses reasonably incurred by such indemnified Person in connection with investigating or on behalf of defending any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesClaim.
(c) Promptly after receipt by an indemnified party under this Section 8 4.4(a) or Section 4.4(b) of written notice of the commencement of any actionaction or proceeding for which indemnification under Section 4.4(a) or Section 4.4(b) may be requested, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, shall notify the such indemnifying party in writing of the commencement thereofof such action or proceeding; but the failure omission to so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above unless and which it may have to the extent any indemnified party in respect of such action and such failure results in material prejudice to or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, no event shall such omission relieve the indemnifying party from any obligations other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party other than and it shall notify an indemnifying party of the indemnification obligation provided in paragraph (a) or (b) above. The commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding ; provided, however, that (i) if the indemnifying party fails to promptly assume and control the defense of such action or proceeding; (ii) if such indemnified party who is a defendant in any action or proceeding that is also brought against the indemnifying party reasonably shall have concluded that there may be one or more legal defenses available to such indemnified party that are not available to the indemnifying party’s rights ; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in the prior sentenceany such case, the indemnified party shall have the right to employ assume or continue its own defense as set forth above (but with no more than one firm of counsel (and one local counsel), for all indemnified parties in each jurisdiction) and the indemnifying party shall bear the be liable for any expenses therefor (including, without limitation, any such counsel’s reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by ). If the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants inis not entitled to, or targets ofelects not to, any such action include both assume the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may defense of a claim, it will not be legal defenses available obligated 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys counsel (in addition and one local counsel per jurisdiction) for each indemnified party with respect to such claim. The indemnifying party will not be subject to any local counsel) liability for all indemnified parties. An indemnifying party any settlement made without its consent, which consent shall not be liable under this Section 8 to any indemnified unreasonably withheld or delayed. No indemnifying party regarding any settlement or compromise or shall, without the prior written 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 settlementparty, compromise or consent is consented to by such 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 *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. any settlement agreement with respect to any action or compromise proceeding in respect of which indemnification is sought under Section 4.4(a) or Section 4.4(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent or settlement or compromise (i) includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter in respect of such proceeding claim or litigation, does not subject the indemnified party to any material injunctive relief or other material equitable remedy and (ii) does not include any a statement as to or any admission of fault, culpability or a failure to act act, by or on behalf of any the indemnified party.
(d) In The Investors and EchoStar agree that if, for any reason, the event that the indemnity provided in Section 8(aindemnification provisions contemplated by Sections 4.4(a) or Section 8(b4.4(b) above is of this Agreement are unavailable to or are insufficient to hold harmless an indemnified party for in respect of any reasonClaims referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative fault of of, the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection hand, with the statements or omissions which resulted in respect to such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerationsoffering of securities. The relative fault of such indemnifying party and 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 omission to state a material fact relates to information supplied by the such indemnifying party on the one hand or the by such indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the second preceding sentence is not permitted by Applicable Law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 8(d4.4(d) were to be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 preceding sentences of this Section 8(d4.4(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) Claims referred to above in this Section 8(d) shall be deemed to include (subject to the limitations set forth in Section 4.4(c) of this Agreement) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action action, proceeding or claim. Notwithstanding the provisions of this Section 8(d), no No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities ActAct or any successor provision thereof) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Investor Rights Agreement (EchoStar CORP), Investor Rights Agreement (DISH Network CORP)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of If any Registrable Securities, Securities are included in a registration statement under this Agreement:
6.1. To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Actfollowing statements, Exchange Act omissions or state securities lawsviolations (collectively, or upon a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as originally filed or such term is defined in any amendment thereof, or Rule 433 under the Disclosure PackageSecurities Act, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon ; or
(ii) the omission or alleged omission to state therein in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein therein, or necessary or allegedly necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementtherein, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will indemnification required by this Section 6.1 shall not be liable apply to amounts paid in any case to the extent that settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of any the indemnified party for use in connection with such Holder specifically for inclusion therein including, without limitation, any notice and questionnaireregistration, or (iiy) out the failure of sales any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which available), provided, that the Company may otherwise haveshall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
(b) Each 6.2. To the extent permitted by applicable law, each Selling Holder severally (and not jointly) agrees to shall indemnify and hold harmless the Company and Company, each of its Affiliates, directors, employeeseach of its officers who shall have signed the registration statement, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the fullest extent permitted by applicable lawmeaning of the Securities Act, from and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or liabilities threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages or damages, liabilities and expenses arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementViolation, in light of the circumstances under which they were made) not misleading, each case solely to the extent, but only to the extent, extent that any such untrue statement or alleged untrue statement or omission or alleged omission is contained Violation occurs in any reliance upon and in conformity with written information relating to furnished by such Selling Holder furnished to the Company by or on behalf of its Representatives or controlling persons expressly for use in connection with such Holder specifically for inclusion thereinregistration; provided, however, that (x) the total amount to be indemnified indemnification required by such Holder pursuant to this Section 8(b6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall be limited to the net amount of any indemnity under this Section 6.2 exceed the gross proceeds (after deducting underwriters’ discounts and commissions) from the applicable offering received by such Holder in the offering to which such Registration Statement or Prospectus relatesSelling Holder.
(c) 6.3. Promptly after receipt by an indemnified party under this Section 8 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is to be made against the indemnifying party under this Section 86, notify the indemnifying such indemnified party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice shall deliver to the indemnifying party a written notice of the commencement thereof and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve shall have the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiedgiven notice, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall notthe parties; provided, except with the consent of the indemnified partyhowever, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the that an indemnified party shall have the right to employ retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (and one local counsel), and in which case the indemnifying party shall bear the reasonable fees, costs pay such fees and disbursements 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 shall not have the indemnifying party and right to assume the defense of such action, claim or proceeding on behalf of such indemnified party shall have reasonably concluded that there may be legal defenses available party). The failure to it and/or other indemnified parties which are different from or additional to those available deliver written notice 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 following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the institution of such actiondefense within thirty (30) days after receiving notice thereof; or (iv) provided, that the indemnifying party shall authorize be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party to employ separate counsel at for any settlement of any action, proceeding or claim without the expense written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shallshall consent to any settlement of any action, in connection with any one action proceeding or separate but substantially similar or related actions in claim without the same jurisdiction arising out written consent of the same general circumstances or allegationsindemnifying party, 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. An indemnifying party which consent shall not be liable under this Section 8 unreasonably withheld, conditioned or delayed, that does not include the giving to any such indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding an unconditional release from all liability in respect of which indemnification such action, proceeding 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 is consented to by such 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 or compromise unless such settlement or compromise (i) includes that requires 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 any statement as to or any admission of fault, culpability or a failure to act wrongdoing by or on behalf of any indemnified party.
(d) In 6.4. If the event that indemnification required by this Section 6 from the indemnity provided in Section 8(a) or Section 8(b) above indemnifying party is unavailable to or insufficient to hold harmless an indemnified party for hereunder in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities or expenses referred to in this Section 6:
(includingi) The indemnifying party, without limitationin lieu of indemnifying such indemnified party, legal shall contribute to the amount paid or other payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions which actions 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 fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6.4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d6.4(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no No Person that is 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.
6.5. For purposes of If indemnification is available under this Section 86, the indemnifying parties shall indemnify each Person who controls indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights other equitable consideration referred to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director in Section 6.4.
6.6. The obligations of the Company shall have and the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder Selling Holders of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in under this Section 8 hereof, and will 6 shall survive the transfer completion of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale offering of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationa registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 2 contracts
Sources: Registration Rights Agreement (Entercom Communications Corp), Stock Purchase Agreement (Entercom Communications Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actshall indemnify, to the fullest extent permitted by applicable law, from each holder of Registrable Securities, its officers, directors, partners, employees and agents, if any, and each Person, if any, who controls such holder within the meaning of Section 15 of the Securities Act, against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions proceedings in respect thereof) arise out of and expenses (under the Securities Act or are based upon common law or otherwise), joint or several, resulting from any violation by the Company of the provisions of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement any registration statement or prospectus (and as originally filed amended or in any amendment thereof, supplemented if amended or the Disclosure Package, supplemented) or any preliminary, final preliminary prospectus or summary Prospectus or Free Writing Prospectus included in caused by any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus, in light of the circumstances under which they were made) not misleading, and except to the extent that such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses are caused by any untrue statement or alleged untrue statement contained in or by any omission or alleged omission from information concerning any holder furnished in writing to the Company by such holder expressly for use therein. If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence. If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, the Company agrees to reimburse enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such indemnified party, underwriters within the meaning of Section 15 of the Securities Act to the same extent as incurred, for any legal or other expenses reasonably incurred by them in connection herein before provided with investigating or defending respect to the indemnification of the holders of Registrable Securities; provided that the Company shall not be required to indemnify any such underwriter, or any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or action (whether proceedings in respect thereof) or not the indemnified party expense for which indemnification is claimed results from such underwriter's failure to send or give a party to any proceeding); provided, however, that the Company will not be liable in any case copy of an amended or supplemented final prospectus to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such Person asserting an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished at or prior to the Company by or on behalf written confirmation of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales the sale of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be such Person if such statement or omission was corrected in addition such amended or supplemented final prospectus prior to any liability which such written confirmation and the Company may otherwise haveunderwriter was provided with such amended or supplemented final prospectus.
(b) Each Holder In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder, severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Actshall indemnify, to the fullest extent permitted by applicable law, from the Company, each underwriter and against any their respective officers, directors, employees and all lossesagents, claimsif any, damages and each Person, if any, who controls the Company or liabilities to which they or any such underwriter within the meaning of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation Section 15 of the Securities Act, Exchange Act against any losses, claims, damages, liabilities (or state securities laws, upon proceedings in respect thereof) and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereoffact, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof 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 in the registration statement or prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, extent that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written or such omission is from information relating to so concerning a holder furnished in writing by such Holder furnished to the Company by or on behalf of such Holder specifically holder expressly for inclusion use therein; provided, however, provided that the total amount to be indemnified by such Holder pursuant to this Section 8(b) holder's obligations hereunder shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) received by to such Holder in holder of the offering Registrable Securities sold pursuant to which such Registration Statement or Prospectus relatesregistration statement.
(c) Promptly after receipt by an indemnified party Any Person entitled to indemnification under the provisions of this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party 3.7 shall (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice give prompt notice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; any claim with respect to which it seeks indemnification and (ii) will notunless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, in any event, relieve the permit such indemnifying party from any obligations to any assume the defense of such claim, with counsel reasonably satisfactory to the indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The party; and if such defense is so assumed, such indemnifying party shall be entitled to participate therein and, not enter into any settlement without the consent of the indemnified party if such settlement attributes liability to the extent that it shall wish, jointly with any other indemnified party and such indemnifying party similarly notifiedshall not be subject to any liability for any settlement made without its consent (which shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article III shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense thereofof a claim, 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable obligated to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate counsel or firm of attorneys (in addition to any local counsel) counsel for all parties indemnified parties. An by such indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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) claim, unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense reasonable judgment of any such claim or litigation, shall, except with the consent indemnified party a conflict of each interest may exist between such indemnified party, consent to entry of party and any judgment or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release other of such indemnified party from all liability on claims that are the subject matter of parties in respect to such proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyclaim.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party If for any reasonreason the foregoing indemnity is unavailable, then each applicable the indemnifying party agrees to shall contribute to the aggregate amount paid or payable by the indemnified party as a result of such losses, claims, damages and damages, liabilities or expenses (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party on the one hand and the indemnified party on the other in connection with or (ii) if the statements allocation provided by clause (i) above is not permitted by Applicable Law or omissions which resulted provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such losses, claims, damages or liabilities (or actions in respect thereof), proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The relative fault shall be determined by reference toNotwithstanding the foregoing, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders no holder of Registrable Securities or shall be required to contribute any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account amount in excess of the equitable considerations referred amount such holder would have been required to above in this Section 8(d). The amount paid or payable by pay to an indemnified party as a result of if the losses, claims, damages or liabilities (or actions in respect thereofindemnity under Section 3.7(b) referred to above in this Section 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 claimwas available. Notwithstanding the provisions of this Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent The obligation of any such Holder, agent or underwriter shall have the same rights Person to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) 3.7 shall be limited to the net proceeds (after deducting underwriters’ discounts several and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesnot joint.
(e) The An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 8 will 3.7 to or for the account of the indemnified party from time to time promptly upon receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in this Section 3.7 shall remain in full force and effect, effect regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer a participating holder of Registrable Securities.
(f) To , its officers, directors, agents or any Person, if any, who controls such holder as aforesaid, and shall survive the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale Transfer of Registrable Equity Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from holder and the sale termination of such Registrable Securities pursuant to such Shelf Registrationthis Agreement for any reason.
Appears in 2 contracts
Sources: Stockholders Agreement (Associated Materials Inc), Stockholders Agreement (AMH Holdings, Inc.)
Indemnification; Contribution. (a) The Company shall, and it hereby agrees to to, indemnify and hold harmless each Holder Stockholder (which, for purposes of this Article VI, shall be deemed to include each holder of Registrable Securities, the Affiliates, Shares) and its controlled Affiliates and their respective directors, officers, members, employees, membersmanagers, managers partners, accountants, attorneys and agents of each such Holder and each Person who controls any such Holder (within the meaning of either the Securities Act or and the Exchange Act) such Persons, to in any offering or sale of the fullest extent permitted by applicable lawRegistrable Shares, from and against any and all losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable fees of counsel) (collectively, “Claims”) to which they or any of them each such indemnified party may become subject subject, insofar as such lossesClaims (including any amounts paid in settlement effected with the consent of the Company as provided herein), claims, damages, liabilities and expenses (or actions or proceedings in respect thereof) , arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any (i) an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, registration statement used to register Registrable Shares pursuant to this Agreement or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the any 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 (ii) any untrue or alleged untrue statement of a material fact in the case of the Disclosure Packageany prospectus or preliminary prospectus used to register Registrable Shares pursuant to this Agreement or any amendment thereof or supplement thereto, or any preliminarydocument incorporated by reference therein, final or summary Prospectus any omission or Free Writing Prospectus included in any such Registration Statementalleged omission of 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 the Company shall, and it hereby agrees to to, reimburse each such periodically the indemnified party, as incurred, person for any legal or other out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding)Claims; provided, however, that the Company will shall not be liable to any such Person in any such case only to the extent that any such loss, claim, damage, liability or expense arises (i) Claims arise out of or is are based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, made in reliance upon and in conformity with written information furnished to the Company by or on behalf the Stockholder Group expressly for use therein. The members of any such Holder specifically for inclusion therein includingthe Stockholder Group shall, without limitationand hereby agree, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly, to (i) agrees to indemnify and hold harmless the Company and each of Company, its Affiliates, directors, employeesofficers, members, managers and agents employees and each Person who controls the Company (within the meaning of either the Securities Act or the Exchange Act) such Persons, to the fullest extent permitted by applicable lawif any, from and in any offering or sale of Registrable Shares, against any and all losses, claims, damages or liabilities Claims to which they or any of them each such indemnified party may become subject subject, insofar as such lossesClaims (including any amounts paid in settlement as provided herein), claimsor actions or proceedings in respect thereof, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, registration statement used to register Registrable Shares pursuant to this Agreement or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the any 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 (ii) any untrue or alleged untrue statement of a material fact in the case of the Disclosure Packageany prospectus or preliminary prospectus used to register Registrable Shares pursuant to this Agreement or any amendment thereof or supplement thereto, or any preliminarydocument incorporated by reference therein, final or summary Prospectus any omission or Free Writing Prospectus included in any such Registration Statementalleged omission of 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, to the extent, but in each case only to the extent, extent that any such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any reliance upon and in conformity with written information relating to such Holder furnished to the Company by the Stockholder Group expressly for use therein, and (ii) reimburse the Company for any legal or on behalf other out-of-pocket expenses reasonably incurred by the Company in connection with investigating or defending any such Claim. Notwithstanding the foregoing, no member of such Holder specifically for inclusion therein; provided, however, that the total amount to Stockholder Group shall be indemnified by such Holder pursuant to liable under this Section 8(b6.1(a) shall be limited to for amounts in excess of the net proceeds (after deducting underwriters’ net of underwriting discounts and commissions) received by such Holder holder in the offering giving rise to which such Registration Statement or Prospectus relatesliability.
(cb) Promptly after receipt by an indemnified party under this Section 8 6.1(a) or Section 6.1(b) of written notice of the commencement of any actionaction or proceeding for which indemnification under Section 6.1(a) or Section 6.1(b) may be requested, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, shall notify the such indemnifying party in writing of the commencement thereofof such action or proceeding; but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above unless and which it may have to the extent any indemnified party in respect of such action and such failure results in material prejudice to or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, no event shall such omission relieve the indemnifying party from any obligations other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party other than and it shall notify an indemnifying party of the indemnification obligation provided in paragraph (a) or (b) above. The commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding ; provided, however, that (i) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding within 20 days after receiving notice from such indemnified party that the indemnified party believes it has failed to do so; (ii) if such indemnified party who is a defendant in any action or proceeding which is also brought against the indemnifying party reasonably shall have concluded that there may be one or more legal defenses available to such indemnified party which are not available to the indemnifying party’s rights ; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in the prior sentenceany such case, the indemnified party shall have the right to employ assume or continue its own defense as set forth above (but with no more than one firm of counsel (and one local counsel), for all indemnified parties in each jurisdiction) and the indemnifying party shall bear the be liable for any expenses therefor (including, without limitation, any such reasonable counsel’s fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by ). If the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants inis not entitled to, or targets ofelects not to, any such action include both assume the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may defense of a claim, it will not be legal defenses available obligated 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys (in addition counsel for each indemnified party with respect to such claim. The indemnifying party will not be subject to any local counsel) liability for all indemnified parties. An indemnifying party any settlement made without its consent, which consent shall not be liable under this Section 8 to any indemnified unreasonably withheld or delayed. No indemnifying party regarding any settlement or compromise or shall, without the prior written 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 settlementparty, compromise or consent is consented to by such 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 agreement with respect to any action or compromise proceeding in respect of which indemnification is sought under Section 6.1(a) or Section 6.1(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent or settlement or compromise (i) includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter in respect of such proceeding claim or litigation, does not subject the indemnified party to any material injunctive relief or other material equitable remedy and (ii) does not include any a statement as to or any admission of fault, culpability or a failure to act act, by or on behalf of any the indemnified party.
(dc) In The members of the event Stockholder Group and the Company agree that if, for any reason, the indemnity provided in Section 8(aindemnification provisions contemplated by Sections 6.1(a) or Section 8(b6.1(b) above is hereof are unavailable to or are insufficient to hold harmless an indemnified party for in respect of any reasonClaims referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative fault of of, the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection hand, with the statements or omissions which resulted in respect to such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerationsoffering of securities. The relative fault of such indemnifying party and 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 omission to state a material fact relates to information supplied by the such indemnifying party on the one hand or the by such indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 8(d6.1(c) were to be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 preceding sentences of this Section 8(d6.1(c). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) Claims referred to above in this Section 8(d) shall be deemed to include (subject to the limitations set forth in Section 6.1(b) hereof) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action action, proceeding or claim. Notwithstanding the provisions of this Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, no member of the total amount to be contributed by any Holder pursuant to this Section 8(d) Stockholder Group shall be limited required to make a contribution in excess of the net proceeds (after deducting underwriters’ discounts and commissions) amount received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller person from the sale of such its Registrable Securities pursuant Shares in connection with the offering that gave rise to such Shelf Registrationthe contribution obligation.
Appears in 2 contracts
Sources: Stockholders Agreement (Engility Holdings, Inc.), Agreement and Plan of Merger (Engility Holdings, Inc.)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesHolder, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and or questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof2(b). This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b8(b) shall be limited to the net gross proceeds (after before deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates. This indemnity agreement will be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 88, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party parties shall collectively have the right to employ its their own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (i) includes that does not include as an unconditional release of term thereof the giving by the claimant or plaintiff therein, to such indemnified party party, of a full and final release from all liability on claims that are the subject matter of in respect to such proceeding and (ii) does not include any statement as to claim or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partylitigation.
(d) In the event that the indemnity provided in Section 8(a8(a) or Section 8(b8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and by the indemnified party on the other from the offering of the INSW Common Stock. 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 indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(d8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d8(d), 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. For purposes of this Section 88, each Person who controls any Holder of Registrable SecuritiesHolder, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇Securities Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationSecurities.
Appears in 2 contracts
Sources: Registration Rights Agreement (International Seaways, Inc.), Registration Rights Agreement (International Seaways, Inc.)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees will, to the extent permitted by law, indemnify and hold harmless each Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of Registrable Securitiespartners and stockholders of any such partners), the Affiliates, and directors, officers, stockholders, affiliates, employees, members, managers representatives and agents of each such Holder any of them, and each Person person who controls any such Holder of them within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law), from and against any and all losses, claims, damages, liabilities reasonable expenses and liabilities, joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred), to which they they, or any of them them, may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of under the Securities Act, the Exchange Act or other federal or state securities lawsstatutory law or regulation, at common law or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofotherwise, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon on (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement (including any related preliminary or in definitive prospectus, or any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretoto such registration statement or prospectus), or arise out of or are based upon the (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein in it not misleading; provided, however, that the Company will not be liable to the extent that (1) such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by or on behalf of such Holder in accordance with Section 4(a) of this Agreement for use in such registration statement, or (2) in the case of the Disclosure Packagea sale directly by such Holder (including a sale of Registrable Securities through any underwriter retained by such Holder to engage in a distribution solely on behalf of such Holder), or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is was contained in a preliminary prospectus and corrected in a final or amended prospectus, and such Holder failed to deliver a copy of the final or amended prospectus at or prior to the confirmation of the sale of the Registrable Securities to the Person asserting any written information relating such loss, claim, damage or liability in any case where such delivery is required by the Securities Act or any state securities laws, or (iii) any violation or alleged violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law. With respect to such Holder untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by or on behalf of such Holder specifically in accordance with Section 4(a) of this Agreement for inclusion therein; use in such registration statement, such Holder will severally and not jointly indemnify and hold harmless the Company (including its directors, officers, employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees, representatives and agents of any of them, and each person who controls any of them 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, reasonable expenses and liabilities, joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred), to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, provided, however, that the total amount to be indemnified by such indemnification obligations of the Holder pursuant to contained in this Section 8(b5(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be limited to unreasonably withheld; and provided, further, that, in no event shall any indemnity under this Section 5(a) exceed the net proceeds (after deducting underwriters’ discounts and commissions) from the offering received by such Holder Holder, except in the offering to which case of fraud or willful misconduct by such Registration Statement or Prospectus relatesHolder.
(cb) Promptly after receipt If the indemnification provided for in Section 5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under this Section 8 of notice of the commencement in respect of any actionlosses, such indemnified party willclaims, if a claim in respect thereof is damages, expenses or liabilities referred to be made against the therein, then each indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not5, in any event, relieve the lieu of indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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 thereunder, shall not, except with the consent of the indemnified party, be counsel contribute to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel amount paid or any other expenses subsequently incurred payable by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses as a result 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, expenses or liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and the other Holders from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the indemnifying party on the one hand Company and the indemnified party on the other Holders in connection with the statements or omissions which 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 and the Holders shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and the Holders, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company and the Holders shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the indemnifying party on the one hand Company or the indemnified party on the other Holders and the parties’ relative intent, knowledge, knowledge and access to information and opportunity to correct or prevent such statement or omissioninformation. The parties Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d5(b) were determined by pro rata or per capita allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(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) referred to above in this Section 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 Section 8(d), no Person No person found 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 found guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(ec) The provisions amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 8 5 shall be deemed to 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, payable as the same are incurred. The indemnification and contribution provided for in this Section 5 will remain in full force and effect, effect regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company indemnified parties or any officer, director, employee, agent or controlling person of the officersindemnified parties. No indemnifying party, directors in the defense of any such claim or controlling Persons referred litigation, shall enter into a consent of entry of any judgment or enter into a settlement without the consent of the indemnified party, which consent will not be unreasonably withheld. Any indemnified party that proposes to in assert the right to be indemnified under this Section 8 hereof5 will, and will survive the transfer promptly after receipt of Registrable Securities.
(f) To the extent notice of commencement or threat of any indemnification by claim or action against such party in respect of which a claim is to be made against an indemnifying party is prohibited or limited by law, under this Section 5 notify the indemnifying party agrees in writing (such written notice, an “Indemnification Notice”) of the commencement or threat of such action, enclosing a copy of all papers served or notices received (if applicable), but the omission so to make notify the maximum contribution with respect indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to any amounts for which it would otherwise be liable indemnified party under the foregoing provisions of this Section 8 5 unless, and only to the fullest extent permitted that, such omission results in the forfeiture of substantive rights or defenses by lawthe indemnifying party. The indemnified party will have the right to retain its own counsel in any such action if (i) the employment of counsel by the indemnified party has been authorized by the indemnifying party, (ii) the indemnified party’s counsel, shall have reasonably concluded that there is a reasonable likelihood of a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of such action or (iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action within a reasonable period of time following its receipt of the Indemnification Notice, in each of which cases the fees and expenses of the indemnified party’s separate counsel shall be at the expense of the indemnifying party; provided, however, that: that the indemnified party shall agree to repay any expenses so advanced hereunder if it is ultimately determined by a court of competent jurisdiction that the indemnified party to whom such expenses are advanced is not entitled to be indemnified; and provided, further, that so long as the indemnified party has reasonably concluded that no conflict of interest exists, the indemnifying party may assume the defense of any action hereunder with counsel reasonably satisfactory to the indemnified party.
(id) no Person involved in In the sale event of an underwritten offering of Registrable Securities which Person is guilty of fraudulent misrepresentation (within under this Agreement, the meaning of Section 11(f) of Company shall enter into standard indemnification and underwriting agreements with the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationunderwriter thereof.
Appears in 2 contracts
Sources: Joint Venture Agreement (Winwin Gaming Inc), Registration Rights Agreement (Winwin Gaming Inc)
Indemnification; Contribution. (a) The Company agrees to shall indemnify and hold harmless each Holder of Registrable SecuritiesHolder, the Affiliates, its respective officers and directors, officers, employees, members, managers and agents of each such Holder and each Person person, if any, who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and any agents, to the fullest extent permitted by applicable law, from and representatives or advisers thereof against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities (including reasonable attorneys' fees and expenses (and reasonable costs of investigation) incurred by such party pursuant to any actual or actions in respect thereof) arise threatened action, suit, proceeding or investigation arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon (i) any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed Statement, any Prospectus or in any amendment thereof, or the Disclosure Packagepreliminary Prospectus, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretoto any of the foregoing, 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 Disclosure Package, or any preliminary, final or summary a Prospectus or Free Writing Prospectus included in any such Registration Statementa preliminary Prospectus, in light of the circumstances under which they were madethen existing) not misleading, or (iii) any violation or alleged violation by the Company of any United States federal, state or common law rule or regulation applicable to the Company and agrees relating to reimburse each such indemnified party, as incurred, for any legal action required of or other expenses reasonably incurred inaction by them the Company in connection with investigating any such registration except in each case insofar as the same arise out of or defending are based upon, any such untrue statement or omission made in reliance on and in conformity with written information with respect to a Holder furnished to the Company by such Holder or its counsel expressly for use therein. In connection with an Underwritten Offering, the Company shall indemnify the underwriters thereof, their officers, directors and agents and each Person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of each Holder. Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to any Holder, any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls any such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under this Section 11 for any such loss, claim, damage, liability (or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable proceeding in any case to the extent that any such loss, claim, damage, liability respect thereof) or expense that arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by preliminary Prospectus if a Holder, or other Person on behalf of any such Holder specifically for inclusion therein includingHolder, without limitation, any notice and questionnaire, failed to send or (ii) out deliver a copy of sales a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be such Person and such statement or omission was corrected in addition to any liability which such final Prospectus and the Company may otherwise havehad previously and timely furnished sufficient copies thereof to the Holders in accordance with this Agreement.
(b) Each Holder severally (and not jointly) Any Person entitled to indemnification hereunder agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, give prompt written notice to the fullest extent permitted indemnifying party after the receipt by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any such indemnified party of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party will, if a may claim in respect thereof is indemnification or contribution pursuant to be made against this Section 11 (provided that failure to give such notification shall not affect the obligations of the indemnifying party under pursuant to this Section 8, 11 except to the extent the indemnifying party shall have been materially prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party in writing of the commencement thereof; but , the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, and after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11 for any legal expenses of other counsel or any other expenses expenses, in each case subsequently incurred by such indemnified party party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentenceforegoing, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use indemnifying party shall not have employed counsel reasonably satisfactory to such indemnified party to take charge of the defense of such action within a reasonable time after notice of commencement of such action (so long as such failure to employ counsel chosen is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to represent the reasonable satisfaction of the indemnified party would present its ability to finance such counsel with a conflict of interest; defense, or (ii) the actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and the indemnifying party and the such 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) party which, if the indemnifying party shall not have employed counsel satisfactory to the and such indemnified party were to represent be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party within a reasonable time after notice of shall have the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party right to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallcounsel, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for which case the fees and expenses of more than one separate counsel or firm of attorneys counsel (in addition to any plus one local or regulatory counsel or firm of counsel) for selected by a majority in interest of the indemnified parties shall be borne by the indemnifying party and the fees and expenses of all other counsel retained by the indemnified parties shall be paid by the indemnified parties. An indemnifying No indemnified party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 without the consent (which consent, in the case of an action, suit, claim or compromise unless such settlement or compromise (iproceeding exclusively seeking monetary relief, shall not be unreasonably withheld) 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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified each indemnifying party.
(dc) In If the event that indemnification from the indemnity indemnifying party provided for in this Section 8(a) or Section 8(b) above 11 is unavailable to or insufficient to hold harmless an indemnified party for hereunder in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages damages, liabilities or expenses referred to therein, then the indemnifying 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, liabilities and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements actions or omissions which resulted in such losses, claims, damages or damages, liabilities (or actions in respect thereof)and expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been made by, or relates to information supplied by (in writing, in the case of a Holder) by, such indemnifying party on the one hand or the indemnified party on the other party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement action or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 11(b) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d11(c) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d11(c). 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 Any underwriter's obligations in this Section 8(d11(c) to contribute shall be deemed several in proportion to include any legal or other expenses reasonably incurred the number of Registrable Securities underwritten by such indemnified party in connection with investigating or defending any such action or claimthem and not joint. Notwithstanding the provisions of this Section 8(d11(c), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable 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. For purposes of If indemnification is available under this Section 811, the indemnifying parties shall indemnify each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case indemnified party to the applicable terms and conditions fullest extent provided in Section 11(a) hereof without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 8(d11(c). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(ed) The provisions of this Section 8 will 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The indemnification provided by this Section 11 shall survive the transfer of such Registrable Securities by the Holder and shall remain in full force and effect, regardless effect irrespective of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officersan indemnified party, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying so long as such indemnified party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited acting in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationa fraudulent, reckless or grossly negligent manner.
Appears in 2 contracts
Sources: Registration Rights Agreement (Wellchoice Inc), Registration Rights Agreement (Wellchoice Inc)
Indemnification; Contribution. (a) The Company agrees to will indemnify and hold harmless each Holder holder of Registrable SecuritiesWarrant Stock registered pursuant to this Agreement with the Commission, the Affiliatesor under any blue sky law or regulation, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damagesdamages or liabilities, liabilities and expenses joint or several, to which they or any of them such holder may become subject insofar as under the Act or otherwise, but only to the extent that such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any preliminary prospectus, registration statement, prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to will reimburse each such indemnified party, as incurred, holder for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, action or claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will shall not be liable in any such case to the extent that any such loss, claim, damage, damage or liability or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in any such document, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically holder expressly for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.use therein
(b) Each Holder severally (and not jointly) agrees holder of Common Stock registered pursuant to this Agreement will indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them the Company 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 any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any preliminary prospectus, registration statement or in prospectus, or any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any such document, in reliance upon and in conformity with written information relating to such Holder furnished to the Company by such holder expressly for use therein, or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount in a document to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to filed with the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement Commission or Prospectus relatesany state securities commission.
(c) Promptly after receipt by an indemnified party under subsections (a) or (b) of this Section 8 16 of notice of the commencement of any action, such indemnified party willshall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8either such subsection, notify the indemnifying party in writing of the commencement thereof; but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability which it may have to any indemnified party otherwise than under paragraph (a) or (b) above unless and to the extent either of such subsections. In case any such action and such failure results in material prejudice to the indemnifying shall be brought against any indemnified party and forfeiture by it shall notify the indemnifying party of substantial rights and defenses; and (ii) will notthe commencement thereof, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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 thereof by notice in writing to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after . After receipt of written notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such subsections for any legal expenses of other counsel or any other expenses expenses, in each case subsequently incurred by such indemnified party party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding investigation incurred prior to the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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 assumption 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 16 is unavailable to or insufficient to hold harmless an indemnified party for under subsection (a) or (b) above in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and or liabilities (includingor actions in respect thereof) referred to therein, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such then each indemnifying party may be subject 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 the relative benefits received by the Company and the holder or holders from this Agreement and from the offering of the shares of Warrant Stock. 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 indemnifying party on the one hand Company and the indemnified party on the other holders 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Company or the indemnified party on the other holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Section 8(dsubparagraph (d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them holders 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 Section 8(dsubparagraph (d). The Except as provided in subparagraph (c) of this Section 16, the amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(dsubparagraph (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Person 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. For purposes of Notwithstanding any provision in this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case subparagraph (d) to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoingcontrary, the total amount to be contributed by any Holder pursuant to this Section 8(d) no holder shall be limited to liable for any amount, in the aggregate, in excess of the net proceeds to such holder from the sale of such holder's shares (after deducting underwriters’ discounts and commissionsobtained upon exercise of Warrants) received by giving rise to such Holder in the offering to which such Registration Statement losses, claims, damages or Prospectus relatesliabilities.
(e) The provisions obligations of the Company under this Section 8 will remain 16 shall be in full force and effect, regardless of addition to any investigation made by or on behalf of any Holder of Registrable Securities or liability which the Company may otherwise have at law or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securitiesequity.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Warrant Purchase Agreement (Parallel Petroleum Corp), Warrant Purchase Agreement (Parallel Petroleum Corp)
Indemnification; Contribution. (a) The Company agrees and the Guarantors severally agree to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, and its directors, officers, employees, members, managers representatives and agents of each such Holder and each Person person, if any, who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable lawa "HOLDER INDEMNIFIED PARTY"), from and against (i) any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to liability or claim (including the reasonable cost of investigation) which they or any of them such Holder Indemnified Party may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of incur under the Securities Act, the Exchange Act or state securities lawsotherwise, as incurred, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or Prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplement thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, except insofar as any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and agrees in conformity with information required to reimburse each such indemnified partybe included in any Shelf Registration Statement or the related Prospectus pursuant the Securities Act furnished in writing by or on behalf of any Holder to the Company, (ii) any and all loss, liability, claim, damage and expense whatsoever, as incurred, for to the extent of the aggregate amount paid in settlement of any legal litigation, or other expenses any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that any such settlement is effected with the written consent of the Company; and (iii) any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred by them 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that as to any preliminary prospectus, this indemnity agreement shall not inure to the benefit of any Holder Indemnified Party on account of any loss, claim, damage, liability or action (whether or not arising from the indemnified party is a party sale of the Registrable Securities sold pursuant to the Shelf Registration Statement to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any person by such loss, claim, damage, liability or expense arises Holder Indemnified Party if (i) out that Holder Indemnified Party failed to send or give a copy of the Prospectus, as the same may be amended or is based upon any supplemented, to that person within the time required by the Securities Act (other than as a result of a failure by the Company to timely deliver copies of the Prospectus to such Holder Indemnified Party) and (ii) the untrue statement or alleged untrue statement of a material fact or omission or alleged omission made therein to state a material fact in reliance upon and such preliminary prospectus was corrected in conformity with written information furnished to the Company by Prospectus or on behalf of any such Holder specifically for inclusion therein includinga supplement or amendment thereto, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereofas the case may be. This indemnity agreement will be in addition to any liability which that the Company or any Guarantor may otherwise have.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company and each of its Affiliatesthe Guarantors, and their directors, officers, employees, members, managers representatives and agents and each Person person, if any, who controls the Company or any Guarantor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a "COMPANY INDEMNIFIED PARTY") from and against any and all lossesloss, claimsdamage, damages expense, liability or liabilities to claim (including the reasonable cost of investigation) which they or any of them such Company Indemnified Party may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of incur under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed information furnished in writing by or in any amendment thereof, or in on behalf of such Holder to the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus Company required to be included in any such Shelf Registration StatementStatement or the related Prospectus pursuant the Securities Act, or in any amendment thereof or supplement thereto, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, to the extent, but only to the extent, that any in connection with such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion thereininformation; provided, however, that the total amount to be indemnified by no such Holder pursuant to this Section 8(b) shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Registrable Securities pursuant to which such Shelf Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of If any action, such indemnified party willsuit or proceeding (each, if a claim "PROCEEDING") is brought against any person in respect thereof is of which indemnity may be sought pursuant to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph either subsection (a) or (b) above unless of this Section 6, such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding with counsel reasonably satisfactory to the Indemnified Party and shall pay the fees and expenses of such counsel; provided, however, that failure to so notify the Indemnifying Party shall not relieve such Indemnifying Party from any liability hereunder to the extent such action it is not materially prejudiced as a result thereof and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, event shall not relieve the indemnifying party it from any obligations to any indemnified party other liability which it may otherwise have than the indemnification obligation provided in paragraph (a) or (b) aboveon account of this indemnity agreement. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel), and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be at the expense of such Indemnified Party unless (i) the use Indemnified Party is a Holder of counsel chosen by Notes representing not less than 33% of the indemnifying party to represent aggregate principal amount of the indemnified party would present such counsel with a conflict of interest; then outstanding Notes, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party Indemnifying Party and the indemnifying party and the indemnified party 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 mutually agreed to the indemnifying party; contrary, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party Indemnifying Party has failed within a reasonable time after receipt of notice to assume defense of a Proceeding to retain counsel reasonably satisfactory to the institution of such action; Indemnified Party or (iv) the indemnifying party shall authorize named parties in any such Proceeding (including any impleaded parties) include both the indemnified party Indemnifying Party and the Indemnified Party, the Indemnifying Party proposes to employ separate have the same counsel at represent it and the expense Indemnified Party, and representation of both parties by the indemnifying partysame counsel would be inappropriate due to actual or potential differing interests between them. No indemnifying party shallIt is understood that the Indemnifying Party may, in connection with any one action or separate but substantially similar Proceeding or related actions Proceeding in the same jurisdiction arising out of the same general circumstances or allegationsjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified partiesIndemnified Parties in accordance with the foregoing sentence, and that all such fees and expenses actually incurred shall be promptly reimbursed as incurred upon delivery to the Indemnifying Party of reasonable documentation therefor setting forth such expenses in reasonable detail. An 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 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 the Indemnifying Party to reimburse the Indemnified Party as contemplated by this paragraph, the Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its consent if (i) such settlement is entered into more than 60 Business Days after receipt by the Indemnifying Party of the aforesaid request, (ii) such indemnifying party shall not be liable under this Section 8 have reimbursed the Indemnified Party in accordance with such request prior to any indemnified party regarding the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding 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 any Indemnified Party is consented to by such indemnifying party. No indemnifying a 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any without admission of fault, culpability or a failure to act fault by or on behalf of any indemnified partythe Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities or insufficient claims referred to hold harmless an indemnified party for any reasontherein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, damages, expenses, liabilities or claims, damages and liabilities as incurred, (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holders on the other hand from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities or claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. Notwithstanding the provisions of this Section 6, neither any of the Purchasers nor any Holder shall be required to indemnify or contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by such Holder or Purchaser, as the case may be, exceeds the amount of any damages that such Holder or Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The relative fault of the Company on the one hand and of the Holders on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand or the indemnified party on the other Holders and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Guarantors and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)subsection (d) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no Person 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders' respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or any person controlling any Holder, or the Company or Guarantors, or the Company's or any of the officers, Guarantor's officers or directors or any person controlling Persons referred to in this Section 8 hereof, the Company or any Guarantor and will survive (iii) the transfer sale of any Registrable SecuritiesSecurity by any Holder.
(fg) To the extent any indemnification Section 6 of this Agreement may not be amended except by an indemnifying party is prohibited or limited instrument in writing signed by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationIndemnified Party affected hereto.
Appears in 2 contracts
Sources: Registration Rights Agreement (Integrated Electrical Services Inc), Purchase Agreement (Integrated Electrical Services Inc)
Indemnification; Contribution. (a) The Company agrees Each holder of Common Stock registered pursuant to this Agreement will indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and Company against any and all losses, claims, damages, damages or liabilities and expenses to which they or any of them the Company may become subject subject, under the Act or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any preliminary prospectus, registration statement or in any amendment thereof, or the Disclosure Packageprospectus, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse in each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent extent, but only to the extent, that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in any preliminary prospectus, registration statement or prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically holder expressly for inclusion therein including, without limitation, any notice and questionnaireuse therein, or (ii) out you failed to deliver an amendment or supplement to the prospectus that the Company made available to you prior to the applicable date of sales sale of Registrable Securities made during a Suspension Period after notice is given pursuant Common Stock to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveclaim relates and that corrected any statement or omission in a preliminary prospectus, registration statement or prospectus that forms the basis for a claim against the Company.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice 7(a) above of the commencement of any action, such indemnified party willshall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8either such subsection, notify the indemnifying party in writing of the commencement thereof; but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above unless and that it may otherwise have to the extent any indemnified party. In case any such action and such failure results in material prejudice to the indemnifying shall be brought against any indemnified party and forfeiture by it shall notify the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than commencement thereof the indemnification obligation provided in paragraph (a) or (b) above. 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 thereof by notice in writing to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after . After notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such subsections for any legal expenses of other counsel or any other expenses expense, in each case subsequently incurred by such indemnified party party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding investigation incurred prior to the assumption by the indemnifying party’s rights , unless such expenses have been specifically authorized in writing by the prior sentenceindemnifying party, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear has failed to assume the reasonable fees, costs defense 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 inemploy counsel, or targets of, the named parties to any such action include both the indemnified party and the indemnifying party party, as appropriate, and the such indemnified party shall have reasonably concluded has been advised by counsel 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release representation of such indemnified party from all liability on claims that are and the subject matter indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them, in each of such proceeding and (ii) does not include any statement as to or any admission which cases the fees of fault, culpability or a failure to act counsel for the indemnified party will be paid by or on behalf of any indemnified the indemnifying party.
(dc) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 7 is unavailable to or insufficient to hold harmless an indemnified party for under Section 7(a) in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and or liabilities (includingor action in respect thereof) referred to therein, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such then each indemnifying party may be subject 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 the relative benefits received by the Company and the holder or holders from this Agreement and from the offering of the shares of Common Stock. 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 indemnifying party on the one hand Company and the indemnified party on the other holders in connection with the statements statement 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Company or the indemnified party on the other holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d7(c) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them holders 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 Section 8(dsubsection (c). The Except as provided in Section 7(b), the amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(d7(c) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigation or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Person 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. For purposes of Notwithstanding any provision in this Section 87(c) to the contrary, each Person who controls no holder shall be liable for any Holder amount, in the aggregate, in excess of Registrable Securitiesthe net proceeds to such holder from the sale of such holder's shares (obtained upon exercise of Warrants) giving rise to such losses, agent claims, damages or underwriter within liabilities.
(d) The obligations of the meaning holders of either the Securities Act or the Exchange Act Common Stock under this Section 7 shall be in addition to any liability that such holders may otherwise have and each directorshall extend, officer, employee and agent of any such Holder, agent or underwriter shall have upon the same rights terms and conditions to contribution as such Holdereach person, agent or underwriterif any, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesAct.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Warrant Agreement (Commonwealth Biotechnologies Inc), Warrant Agreement (Commonwealth Biotechnologies Inc)
Indemnification; Contribution. (a) The Company Operating Partnership agrees to indemnify and hold harmless the Initial Purchasers, each Holder of Registrable SecuritiesHolder, the Affiliateseach Participating Broker-Dealer, directors, officers, employees, members, managers and agents of each such Holder and each Person who participates as an underwriter (any such Person being an "Underwriter") and each Person, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense whatsoever, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed (or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) arising out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any Prospectus (or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, ) 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 in order to make the statements therein (therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extentextent of the aggregate amount paid in settlement of any litigation, but only to the extentor any investigation or proceeding by any governmental agency or body, that commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 4(d) below) any such settlement is effected with the written consent of the Operating Partnership; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or subparagraph (ii) above; PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Operating Partnership by the Holder or Underwriter expressly for use in a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Operating Partnership, the Initial Purchasers, each underwriter and the other selling Holders, and each of their respective directors and officers, and each Person, if any, who controls the Operating Partnership, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 4(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged omission is contained untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto) or any Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information relating with respect to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified Operating Partnership by such Holder pursuant to this Section 8(bexpressly for use in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto); PROVIDED, HOWEVER, that no such Holder shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Registrable Securities pursuant to which such Shelf Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any action, such indemnified party will, if a claim action or proceeding commenced against it in respect thereof is of which indemnity may be sought hereunder, but failure to be made against the so notify an indemnifying party under this Section 8, notify the shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof, and in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will any event shall not relieve it from any liability under paragraph (a) or (b) above unless and to which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the extent defense of such action and such failure results in material prejudice action; PROVIDED, HOWEVER, that counsel to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and shall not (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, ) also be counsel to the indemnifying indemnified party), and, except as provided in the next sentence, after notice from . In no event shall the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not or parties be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs fees and expenses of such more than one counsel (in addition to any local counsel) separate from their own 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 for all 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances. No indemnifying party shall, be liable for without the fees and expenses prior written consent of more than one separate firm of attorneys (in addition to any local counsel) for all the indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 4 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim, and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If at any time an indemnified party shall have requested an indemnifying party to reimburse the event indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the indemnity nature contemplated by Section 4(a)(ii) 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.
(e) If the indemnification provided for in this Section 8(a) or Section 8(b) above 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (includingexpenses incurred by such indemnified party, without limitationas incurred, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party Operating Partnership on the one hand and the indemnified party Holders and the Initial Purchasers on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Operating Partnership on the one hand and the Holders and the Initial Purchasers 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 omission to state a material fact relates to information supplied by the indemnifying party on Operating Partnership, the one hand Holders or the indemnified party on the other Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Operating Partnership, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution contributions pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)4. The aggregate amount paid or payable of losses, liabilities, claims, damages 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 Section 8(d) 4 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 Section 8(d)4, no Holder or Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Securities sold by it were offered exceeds the amount of any damages which such Holder or Initial Purchaser 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. For purposes of this Section 84, each Person Person, if any, who controls any an Initial Purchaser or Holder of Registrable Securities, agent or underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Initial Purchaser or Holder, agent or underwriter, and each Person director of the Operating Partnership, and each Person, if any, who controls the Company Operating Partnership within the meaning of either Section 15 of the Securities 1933 Act or the Exchange Act and each officer and director Section 20 of the Company 1934 Act shall have the same rights to contribution as the Company, subject in each case Operating Partnership. The Initial Purchasers' respective obligations to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 4 are several in proportion to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder principal amount of Securities set forth opposite their respective names in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 Schedule A to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was Purchase Agreement and not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationjoint.
Appears in 2 contracts
Sources: Registration Rights Agreement (Simon Property Group L P /De/), Registration Rights Agreement (Simon Property Group L P /De/)
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesPerson who participates as an underwriter (any such Person being an "Underwriter"), the AffiliatesHolder and their respective partners, directors, officers, employees, members, managers officers and agents of each such Holder employees and each Person Person, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and Act as follows:
(i) against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such lossesliabilities, claims, damages, liabilities judgments and reasonable expenses (or actions in respect thereof) arise whatsoever, as incurred, arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed or in any amendment thereofpursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 (not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the case of the Disclosure Packageany Prospectus, including all documents incorporated therein by reference, or any preliminary, final the omission or summary Prospectus or Free Writing Prospectus included alleged omission therefrom of a material fact necessary in any such Registration Statementorder to make the statements therein, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all losses, liabilities, claims, damages, judgments and agrees to reimburse each such indemnified partyreasonable expenses whatsoever, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that of the aggregate amount paid in settlement of any such losslitigation, claiminvestigation or proceeding by any governmental agency or body, damagecommenced or threatened, liability or expense arises (i) out of or is any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and
(iii) against any and all reasonable expense whatsoever, as incurred (including fees and disbursements of counsel), incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (j) or (ii) above; provided, however, that this indemnity agreement does not apply to the Holder or Underwriter with respect to any loss, liability, claim, damage, judgment or expense to the extent arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, or the omission or alleged omission therefrom of a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in any such case made therein in reliance upon and in conformity with written information furnished to the Company by the Holder or on behalf of any such Holder specifically Underwriter expressly for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained use in a Registration Statement as originally filed (or in any amendment thereof, or in the Disclosure Package thereto) or any Holder Free Writing Prospectus, preliminary, final Prospectus (or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto); and provided further, 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 an offering that is not an Underwritten Offering, the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included Company will not be liable to the Holder under the indemnity agreement in this Section 4(a) for any such Registration Statementloss, claim, damage, liability (or action or proceeding in light respect thereof) or expense that arises out of the circumstances under which they were madeHolder's failure to send or give a copy of the final Prospectus (as its may then be amended or supplemented) not misleading, to the extent, but only to the extent, that any such Person asserting an untrue statement or alleged untrue statement or omission or alleged omission is contained in any at or prior to the written information relating confirmation of the sale of the Registrable Securities to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, Person if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that omission was corrected in such final Prospectus (as it would not may then be just amended or supplemented) and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject has previously furnished copies thereof in each case to the applicable terms and conditions of accordance with this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesAgreement.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Tekinsight Com Inc), Agreement and Plan of Reorganization (Tekinsight Com Inc)
Indemnification; Contribution. (a) The Company agrees Co-Issuers and the Guarantors agree jointly and severally to indemnify and hold harmless the Initial Purchasers, each Holder of Registrable SecuritiesHolder, the Affiliateseach Participating Broker-Dealer, directors, officers, employees, members, managers and agents of each such Holder and each Person who participates as an underwriter (any such Person being an “Underwriter”) and each Person, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense whatsoever, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed (or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) arising out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any Prospectus (or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, ) 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 in order to make the statements therein (therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extentextent of the aggregate amount paid in settlement of any litigation, but only to the extentor any investigation or proceeding by any governmental agency or body, that commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 4(d) below) any such settlement is effected with the written consent of the Co-Issuers; and
(iii) against any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel chosen by any indemnified party and, including, without limitation, any stamp taxes in Argentina), reasonably incurred in 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Co-Issuers by the Holder or Underwriter expressly for use in a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Co-Issuers, the Guarantors, the Initial Purchasers, each Underwriter and the other selling Holders, and each of their respective directors and officers, and each Person, if any, who controls the Co-Issuers, a Guarantor, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 4(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged omission is contained untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto) or any Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information relating with respect to such Holder furnished to the Company Co-Issuers by or on behalf of such Holder specifically expressly for inclusion thereinuse in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto); provided, however, that the total amount to be indemnified by no such Holder pursuant to this Section 8(b) shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Registrable Securities pursuant to which such Shelf Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any action, such indemnified party will, if a claim action or proceeding commenced against it in respect thereof is to of which indemnity may be made against the indemnifying party under this Section 8sought hereunder, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the an indemnifying party (i) will shall not relieve such indemnifying party 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 under paragraph (a) or (b) above unless and to which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the extent defense of such action and such failure results in material prejudice action; provided, however, that counsel to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and shall not (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, ) also be counsel to the indemnifying indemnified party), and, except as provided in the next sentence, after notice from . In no event shall the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not or parties be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs fees and expenses of such more than one counsel (in addition to any local counsel) separate from their own 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 for all 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances. No indemnifying party shall, be liable for without the fees and expenses prior written consent of more than one separate firm of attorneys (in addition to any local counsel) for all the indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 4 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If at any time an indemnified party shall have requested an indemnifying party to reimburse the event indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the indemnity nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 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 45 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.
(e) If the indemnification provided for in this Section 8(a) or Section 8(b) above 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (includingexpenses incurred by such indemnified party, without limitationas incurred, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party Co-Issuers and the Guarantors on the one hand and the indemnified party Holders and the Initial Purchasers on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Co-Issuers and the Guarantors on the one hand and the Holders and the Initial Purchasers 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 omission to state a material fact relates to information supplied by the indemnifying party on Co-Issuers and/or the one hand Guarantors, the Holders or the indemnified party on the other Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Co-Issuers, the Guarantors, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them and/or Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)4. The aggregate amount paid or payable of losses, liabilities, claims, damages 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 Section 8(d) 4 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 Section 8(d)4, no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total discount received by it in connection with its purchase of the Securities exceeds the amount of any damages which such Initial Purchaser 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. For purposes of this Section 84, each Person Person, if any, who controls any an Initial Purchaser or Holder of Registrable Securities, agent or underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Initial Purchaser or Holder, agent or underwriter, and each Person director of the Co-Issuers or any Guarantor, and each Person, if any, who controls the Company Co-Issuers or any Guarantor within the meaning of either Section 15 of the Securities 1933 Act or the Exchange Act and each officer and director Section 20 of the Company 1934 Act shall have the same rights to contribution as the CompanyCo-Issuers or such Guarantor, subject in each case as applicable. The Initial Purchasers’ respective obligations to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 4 are several in proportion to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder principal amount of Securities set forth opposite their respective names in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 Schedule A to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was Purchase Agreement and not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationjoint.
Appears in 2 contracts
Sources: Registration Rights Agreement (Petrolera San Antonio S.A.), Registration Rights Agreement (Navios Maritime Holdings Inc.)
Indemnification; Contribution. (a) The Company agrees to will indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder holder and each Person who controls affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, or under any such Holder within the meaning of either the Securities Act Blue Sky Law or the Exchange Act, to the fullest extent permitted by applicable law, from and regulation against any and all losses, claims, damages, liabilities and expenses or liabilities, joint or several, to which they or any of them such holder may become subject under the Act or otherwise, insofar as such losses, claims, damages, or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofpreliminary prospectus, or the Disclosure Packageregistration statement, prospectus, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to will reimburse each such indemnified party, as incurred, holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, claim, damage, liability action or action (whether claim regardless of the negligence of any such holder or not the indemnified party is a party to any proceeding)affiliate; provided, however, that the Company will shall not be liable in any such case to the extent that any such loss, claim, damage, or liability or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in any preliminary prospectus, registration statement or prospectus, or any such amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically holder expressly for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveuse therein.
(b) Each Holder severally (and not jointly) agrees holder of Common Stock registered pursuant to this Agreement will indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages damages, or liabilities to which they or any of them the Company may become subject subject, under the Act or otherwise, insofar as such losses, claims, damages damages, or liabilities (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any preliminary prospectus, registration statement or in prospectus, or any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any preliminary prospectus, registration statement or prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically holder expressly for inclusion use therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice Sections 7(a) or (b) above of the commencement of any action, such indemnified party willshall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8either such subsection, notify the indemnifying party in writing of the commencement thereof; but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above unless and that it may otherwise have to the extent any indemnified party. In case any such action and such failure results in material prejudice to the indemnifying shall be brought against any indemnified party and forfeiture by it shall notify the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than commencement thereof the indemnification obligation provided in paragraph (a) or (b) above. 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 thereof by notice in writing to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after . After notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such subsections for any legal expenses of other counsel or any other expenses expense, in each case subsequently incurred by such indemnified party party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding investigation incurred prior to the assumption by the indemnifying party’s rights , unless such expenses have been specifically authorized in writing by the prior sentenceindemnifying party, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear has failed to assume the reasonable fees, costs defense 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 inemploy counsel, or targets of, the named parties to any such action include both the indemnified party and the indemnifying party party, as appropriate, and the such indemnified party shall have reasonably concluded has been advised by counsel 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release representation of such indemnified party from all liability on claims that are and the subject matter indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them, in each of such proceeding and (ii) does not include any statement as to or any admission which cases the fees of fault, culpability or a failure to act counsel for the indemnified party will be paid by or on behalf of any indemnified the indemnifying party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 7 is unavailable to or insufficient to hold harmless an indemnified party for under Section 7(a) or 7(b) in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, or liabilities (includingor action in respect thereof) referred to therein, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such then each indemnifying party may be subject 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 the relative benefits received by the Company and the holder or holders from this Agreement and from the offering of the shares of Common Stock. 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 indemnifying party on the one hand Company and the indemnified party on the other holders in connection with the statements statement or omissions which that resulted in such losses, claims, damages damages, or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Company or the indemnified party on the other holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d7(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them holders 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 Section 8(dsubsection (d). The Except as provided in Section 7(c), the amount paid or payable by an indemnified party as a result of the losses, claims, damages damages, or liabilities (or actions in respect thereof) referred to above in this Section 8(d7(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigation or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Person 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. For purposes of Notwithstanding any provision in this Section 87(d) to the contrary, no holder shall be liable for any amount, in the aggregate, in excess of the net proceeds to such holder from the sale of such holder's shares (obtained upon exercise of Warrants) giving rise to such losses, claims, damages, or liabilities.
(e) The obligations of the Company under this Section 7 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each Person person, if any, who controls any Holder holder of Registrable Securities, agent or underwriter Warrants within the meaning of either the Securities Act or Act. The obligations of the Exchange Act holders of Common Stock under this Section 7 shall be in addition to any liability that such holders may otherwise have and each directorshall extend, officer, employee and agent of any such Holder, agent or underwriter shall have upon the same rights terms and conditions to contribution as such Holdereach person, agent or underwriterif any, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesAct.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Warrant Agreement (Talisman Enterprise Inc), Warrant Agreement (Talisman Enterprise Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person person who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable lawAct (each a “Holder Indemnified Party”), from and against any loss, damage, expense, liability, judgment or claim (including reasonable legal fees, investigation costs and all losses, claims, damages, liabilities and expenses to other expenses) which they or any of them such Holder Indemnified Party may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of incur under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, judgment or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or Prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplement thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified party, except insofar as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, judgment or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense claim arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveexpressly for use therein.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company Company, its directors and each of its Affiliates, directors, employees, members, managers officers and agents and each Person any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a “Company Indemnified Party”) to the fullest same extent permitted by applicable lawas the foregoing indemnity from the Company to each Holder Indemnified Party, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject but only insofar as such lossesloss, claimsdamage, damages expense, liability, judgment or liabilities arise claim arises out of or are is based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement as originally filed or Prospectus or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, supplement thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, in connection with such information. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating Shelf Registration Statement giving rise to such Holder furnished indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 7, such person (the Company by or on behalf “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Holder specifically for inclusion thereinProceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so omission to notify the indemnifying party (i) will such Indemnifying Party shall not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that liability which it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory may have to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationotherwise. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, culpability or a failure to act act, by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 7 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 7 in respect of any losses, damages, expenses, liabilities, judgments or insufficient claims referred to hold harmless an indemnified party for any reasontherein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and expenses, liabilities or claims (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holders on the other hand from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities or claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand or the indemnified party on the other Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, judgments and claims referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 7 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities subsection (or actions in respect thereofd) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)7, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 7 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 7 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or any person controlling any Holder, or the Company Company, or the Company’s officers or directors or any of person controlling the officers, directors or controlling Persons referred to in this Section 8 hereof, Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cooper Cameron Corp), Registration Rights Agreement (Cameron International Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder of Registrable Securitiescovered by any Registration Statement, the Affiliates, directors, officers, employees, members, managers and agents of (ii) each such Holder and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls any such Holder (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities and expenses to which they liabilities, judgments or any of them may become subject insofar as such lossesexpenses, claims, damages, liabilities and expenses joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities lawsupon, or upon are caused by any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed or in Prospectus (or any amendment thereof, or the Disclosure Packagesupplement thereto), or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in not misleading, or a violation by the case Company of the Disclosure PackageSecurities Act or any state securities law, or any preliminaryrule or regulation promulgated under the Securities Act or any state securities law, final or summary Prospectus or Free Writing Prospectus included in any other law applicable to the Company relating to any such Registration Statementregistration or qualification, in light except insofar as such losses, claims, damages, liabilities, judgments or expenses of the circumstances under which they were made) not misleading, and agrees to reimburse each any such indemnified party, as incurred, for any legal or other expenses reasonably incurred Person; (x) are caused by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission or alleged omission made therein that is based upon information relating to such indemnified Person furnished in reliance upon and in conformity with written information furnished writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder specifically for inclusion therein includingsold Securities to a Person to whom there was not sent or given, without limitationat or prior to the written confirmation of such sale, any notice and questionnairea copy of the Prospectus, as amended or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which supplemented, if the Company may otherwise have.
(b) Each shall have previously furnished copies thereof to such Holder severally (in accordance with this Agreement and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing said Prospectus, preliminaryas amended or supplemented, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any would have corrected such untrue statement or alleged untrue statement omission; or omission or alleged omission is contained in (z) as a result of the use by an indemnified Person of any written information relating to such Holder furnished to Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified securities by such Holder pursuant to this Section 8(b) Holder. In case any action shall be limited to brought or asserted against any of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering indemnified Persons with respect to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of indemnity may be sought against the commencement of any actionCompany, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, Person shall promptly notify the indemnifying party in writing of Company and the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party Company 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 . Such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Person shall have the right to employ its own separate counsel (in any such action and one local counsel)to participate in the defense thereof, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be at the expense of the indemnified Person unless (i) the use employment of such counsel chosen shall have been specifically authorized in writing by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; Company, (ii) the actual or potential defendants inCompany shall have failed to assume the defense and employ counsel, or targets of, (iii) the named parties to any such action (including any implied parties) include both the indemnified party Person and the indemnifying party Company and the indemnified party Person shall have reasonably concluded been advised in writing by its counsel 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; Company (iii) in which case the indemnifying party Company shall not have employed counsel satisfactory the right to assume the defense of such action on behalf of the indemnified party to represent Person), it being understood, however, that the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party Company shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallnot, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction or proceedings arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified partiesPersons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. An indemnifying party The Company shall not be liable under this Section 8 for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified party regarding Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of any judgment with respect on or otherwise seek to terminate any pending or threatened action, claim, action, suit litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the any indemnified parties are actual or potential parties to such claim or action) Person is a party thereto), unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partycompromise, consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (i) termination includes an unconditional release of such each indemnified party Person from all liability on claims that are the subject matter arising out of such proceeding action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (iiwithin the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) does not include any statement the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to or any admission each of faultthe indemnified Persons, culpability or a failure but only (i) with ---- respect to act actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any indemnified partyRegistration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(dc) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 2.7 is unavailable to or insufficient to hold harmless an indemnified party for under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any reasonlosses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party agrees to (in the case of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claimsclaims damages, damages and liabilities liabilities, judgments or expenses (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 referred to in clause (i) above but also the relative fault of the Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities, judgments or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Company or the indemnified party on the other by such Holder and the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 8(d2.7(c) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 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 Section 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 claimimmediately preceding paragraph. Notwithstanding the provisions of this Section 8(d2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation misrepresentations (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. For purposes of The indemnity and contribution provisions contained in this Section 8, each 2.7 are in addition to any liability which the indemnifying Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall may otherwise have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling indemnified Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securitiesabove.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Senesco Technologies Inc), Registration Rights Agreement (Senesco Technologies Inc)
Indemnification; Contribution. (a) The Company agrees Indemnification by Wyndham. Wyndham agrees, jointly and -------------------------- severally, to indemnify and hold harmless each Person who participates as an underwriter (any such Person being an "Underwriter"), each Holder of Registrable Securities, the Affiliatesand their respective partners, directors, officers, employees, members, managers officers and agents of each such Holder employees and each Person Person, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and Act as follows:
(i) against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such lossesliabilities, claims, damages, liabilities judgments and expenses (or actions in respect thereof) arise whatsoever, as incurred, arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed or in any amendment thereofpursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 (in the case of the Disclosure Package, not misleading or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) arising out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofProspectus, including all documents incorporated therein by reference, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 in order to make the statements therein (therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all losses, liabilities, claims, damages, judgments and expenses whatsoever, as incurred, to the extentextent of the aggregate amount paid in settlement of any litigation, but only to the extentinvestigation or proceeding by any governmental agency or body, that commenced or threatened, or of any other claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission omission, if such settlement is effected with the written consent of Wyndham; and
(iii) against any and all expense whatsoever, as incurred (including fees and disbursements of counsel), incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not such Person is a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged omission is contained in any written information relating to such Holder furnished untrue statement or omission, to the Company by extent that any such expense is not paid under subparagraph (i) or on behalf of such Holder specifically for inclusion therein(ii) above; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will indemnity agreement does not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations apply to any indemnified party other than the indemnification obligation provided in paragraph (a) Holder or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment Underwriter with respect to any pending or threatened loss, liability, claim, actiondamage, suit judgment or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not expense to the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense extent arising out 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 or compromise unless such settlement or compromise (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 any untrue statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact contained in any Prospectus, or the omission or alleged omission to state therefrom of a material fact relates necessary to information supplied by make the indemnifying party on statements therein, in the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account light of the equitable considerations referred to above circumstances under which they were made, not misleading, in this Section 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 Section 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 Section 8(d), no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled case made in reliance upon and in conformity with written information furnished to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received Wyndham by such Holder or Underwriter expressly for use in the offering to which such a Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors amendment thereto) or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securitiesany Prospectus (or any amendment or supplement thereto).
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Guayacan Private Equity Fund Lp), Registration Rights Agreement (Wyndham International Inc)
Indemnification; Contribution. (a) The Company agrees to will indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder holder and each Person who controls affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, or under any such Holder within the meaning of either the Securities Act Blue Sky Law or the Exchange Act, to the fullest extent permitted by applicable law, from and regulation against any and all losses, claims, damages, liabilities and expenses or liabilities, joint or several, to which they or any of them such holder may become subject under the Act or otherwise, insofar as such losses, claims, damages, or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofpreliminary prospectus, or the Disclosure Packageregistration statement, prospectus, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to will reimburse each such indemnified party, as incurred, holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, claim, damage, liability action or action (whether claim regardless of the negligence of any such holder or not the indemnified party is a party to any proceeding)affiliate; provided, however, that the Company will shall not be liable in any such case to the extent that any such loss, claim, damage, or liability or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in any preliminary prospectus, registration statement or prospectus, or any such amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically holder expressly for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveuse therein.
(b) Each Holder severally (and not jointly) agrees holder of Common Stock registered pursuant to this Agreement will indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages damages, or liabilities to which they or any of them the Company may become subject subject, under the Act or otherwise, insofar as such losses, claims, damages damages, or liabilities (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any preliminary prospectus, registration statement or in prospectus, or any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any preliminary prospectus, registration statement or prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically holder expressly for inclusion use therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice Sections 8(a) or (b) above of the commencement of any action, such indemnified party willshall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8either such subsection, notify the indemnifying party in writing of the commencement thereof; but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above unless and that it may otherwise have to the extent any indemnified party. In case any such action and such failure results in material prejudice to the indemnifying shall be brought against any indemnified party and forfeiture by it shall notify the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than commencement thereof the indemnification obligation provided in paragraph (a) or (b) above. 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 thereof by notice in writing to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after . After notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such subsections for any legal expenses of other counsel or any other expenses expense, in each case subsequently incurred by such indemnified party party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding investigation incurred prior to the assumption by the indemnifying party’s rights , unless such expenses have been specifically authorized in writing by the prior sentenceindemnifying party, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear has failed to assume the reasonable fees, costs defense 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 inemploy counsel, or targets of, the named parties to any such action include both the indemnified party and the indemnifying party party, as appropriate, and the such indemnified party shall have reasonably concluded has been advised by counsel 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release representation of such indemnified party from all liability on claims that are and the subject matter indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them, in each of such proceeding and (ii) does not include any statement as to or any admission which cases the fees of fault, culpability or a failure to act counsel for the indemnified party will be paid by or on behalf of any indemnified the indemnifying party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 8 is unavailable to or insufficient to hold harmless an indemnified party for under Section 8(a) or 8(b) in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, or liabilities (includingor action in respect thereof) referred to therein, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such then each indemnifying party may be subject 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 the relative benefits received by the Company and the holder or holders from this Agreement and from the offering of the shares of Common Stock. 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 indemnifying party on the one hand Company and the indemnified party on the other holders in connection with the statements statement or omissions which that resulted in such losses, claims, damages damages, or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Company or the indemnified party on the other holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them holders 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 Section 8(dsubsection (e). The Except as provided in Section 8(c), the amount paid or payable by an indemnified party as a result of the losses, claims, damages damages, or liabilities (or actions in respect thereof) referred to above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating investigation or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Person 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. For purposes of Notwithstanding any provision in this Section 88(d) to the contrary, no holder shall be liable for any amount, in the aggregate, in excess of the net proceeds to such holder from the sale of such holder's shares (obtained upon exercise of Warrants) giving rise to such losses, claims, damages, or liabilities.
(e) The obligations of the Company under this Section 8 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each Person person, if any, who controls any Holder holder of Registrable Securities, agent or underwriter Warrants within the meaning of either the Securities Act or Act. The obligations of the Exchange Act holders of Common Stock under this Section 8 shall be in addition to any liability that such holders may otherwise have and each directorshall extend, officer, employee and agent of any such Holder, agent or underwriter shall have upon the same rights terms and conditions to contribution as such Holdereach person, agent or underwriterif any, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesAct.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Warrant Agreement (Lorecom Technologies Inc), Warrant Agreement (Horizon Pharmacies Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(ai) The To the extent permitted by applicable law, the Company agrees to shall indemnify and hold harmless each Holder of Registrable SecuritiesHolder, and the Affiliatespartners, members, officers, directors, officers, employees, members, managers and agents stockholders of each such Holder Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person Person, if any, who controls any such Holder or underwriter within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorney’s fees and disbursements and reasonable expenses of investigation (collectively, “Losses”), incurred by such Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) Losses arise out of or are based upon any violation of the Securities Actfollowing statements or omissions (collectively, Exchange Act or state securities laws, or upon a “Violation”):
(1) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed the registration statement, including any preliminary Prospectus or in any amendment thereof, or the Disclosure Packagefinal Prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon ; or
(2) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementtherein, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the indemnification required by this Section 2(f)(i) shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of the Company will (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such Loss to the extent that any such loss, claim, damage, liability or expense it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished in writing to the Company by or on behalf of a Holder or any underwriter expressly for use in connection with such registration; and provided, further, that any indemnification required by this Section 2(f)(i) shall not apply to the extent that any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, Loss is based on or (ii) arises out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereoffact, or an omission or alleged omission to state a material fact, included in or omitted from any preliminary prospectus if the Disclosure Package final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given by the Holder or any Holder Free Writing Prospectusunderwriter to the Person alleging damage at or prior to the confirmation of sale to such Person; and provided, preliminaryfurther, final or summary Prospectus included in that this indemnity shall not apply to the extent that any such Loss is based on an offer or Transfer of Registrable Securities during any period which the Company has notified the Holder that such offers and Transfers must cease under the Agreement, including under Section 2(b), Section 2(c)(ii) or Section 2(c)(v) .
(ii) To the extent permitted by applicable law, the Holders (severally and not jointly) shall indemnify and hold harmless the Company, each of the directors of the Company, each of the officers of the Company who shall have signed the Resale Registration Statement, each Person, if any, who controls the Company within the meaning of the Securities Act, and each officer, director, partner, and employee of such controlling Person, against any and all Losses incurred by such Person pursuant to any actual or in any amendment thereof threatened action, suit, proceeding or supplement theretoinvestigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses 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 the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementViolation, in light of the circumstances under which they were made) not misleading, each case to the extent, but only to the extent, extent that any such untrue statement Violation arises out of or alleged untrue statement or omission or alleged omission is contained based upon information furnished in any written information relating to such Holder furnished to the Company writing by or on behalf of a Holder expressly for use in connection with such Holder specifically for inclusion thereinregistration, or upon the Holder’s failure to properly and timely deliver an “official” Prospectus, or upon the Holder’s use of a written or oral prospectus other than the “official” Prospectus; provided, however, that the total amount to be indemnified any indemnification required by such Holder pursuant to this Section 8(b2(f)(ii) shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of the Holders (which consent shall not be limited to unreasonably withheld) and in no event shall the net amount of any indemnity obligation under this Section 2(f)(ii) exceed the gross proceeds (after deducting underwriters’ discounts and commissions) from the applicable offering received by such Holder in the offering to which such Registration Statement or Prospectus relatesHolders.
(ciii) Promptly after receipt by an indemnified party under this Section 8 2(f) of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is to be made against the indemnifying party under this Section 82(f), notify the indemnifying such indemnified party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice shall deliver to the indemnifying party a written notice thereof and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve shall have the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel satisfactory the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, andif prejudicial to its ability to defend such action, except as provided in shall relieve such indemnifying party of any liability to the next sentenceindemnified party under this Section 2(f) to the extent, after notice from but only to the extent, of such prejudice but shall not relieve the indemnifying party of any liability that it may have to such any indemnified party of its election otherwise than pursuant to so assume the defense thereof, the indemnifying party shall not be liable to this Section 2(f). Any such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and one local counsel), and expenses or (ii) the indemnifying party shall bear have failed to promptly assume the reasonable fees, costs and expenses defense of such separate counsel if action, claim or proceeding or (iiii) the use of counsel chosen by the indemnifying party named parties 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 action, claim or proceeding (including any impleaded parties) include both the such indemnified party and the indemnifying party party, and the such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties which that are different from or additional in addition to those available to the indemnifying party; (iii) party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party shall could not have employed counsel satisfactory to the indemnified party to faithfully represent the indemnified party within a reasonable time after notice of the institution of (in which case, if such action; or (iv) indemnified party notifies the indemnifying party shall authorize the indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. No , the indemnifying party shallshall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one action such action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all such indemnified parties. An , unless in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall not be liable under obligated to pay the reasonable fees and expenses of such additional counsel or counsels).
(iv) If the indemnification required by this Section 8 2(f) from the indemnifying party is unavailable to any an indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding hereunder in respect of which indemnification or contribution may be sought hereunder any Losses referred to in this Section 2(f) :
(whether or not 1) the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense lieu of any indemnifying such claim or litigation, shall, except with the consent of each indemnified party, consent shall contribute to entry of any judgment the amount paid or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release of payable by such indemnified party from all liability on claims that are the subject matter as a result of such proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions which actions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof)Losses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 2(f)(i), 2(f)(ii) and 2(f)(iii), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding;
(2) the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d2(f)(iv) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d2(f)(iv)(1). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f11(e) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director .
(v) The obligations of the Company shall have and the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of Holders under this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d2(f) shall be limited to survive the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless completion of any investigation made by or on behalf offering of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationthe registration statement under this Agreement, and otherwise.
Appears in 2 contracts
Sources: Registration Rights Agreement (Akorn Inc), Registration Rights Agreement (Akorn Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of If any Registrable Securities, Securities are included in a registration statement under this Agreement:
7.1. To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, and employee of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Actfollowing statements, Exchange Act omissions or state securities laws, or upon any violations (collectively a “Violation”):
(i) Any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement, including any preliminary prospectus or in any amendment thereof, or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon the ; or
(ii) The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will indemnification required by this Section 7.1 shall not be liable apply to amounts paid in any case to the extent that settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 7 shall not apply to any underwriter to the extent that any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, loss is based on or (ii) arises out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact fact, or an omission or alleged omission to state a material fact, contained in a Registration Statement as originally filed or in omitted from any amendment thereofpreliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the Disclosure Package distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any Holder Free Writing Prospectusother Selling Holder, preliminary, final or summary Prospectus included in any controlling Person of any such Registration Statementother Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or in to which any amendment thereof of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or supplement theretoother federal or state laws, or insofar as such losses, claims, damages, liabilities and expenses 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 the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementViolation, in light of the circumstances under which they were made) not misleading, each case to the extent, but extent (and only to the extent, ) that any such untrue statement or alleged untrue statement or omission or alleged omission is contained Violation occurs in any reliance upon and in conformity with written information relating to furnished by such Selling Holder furnished to the Company by or on behalf of expressly for use in connection with such Holder specifically for inclusion thereinregistration; provided, however, that (x) the total amount to be indemnified indemnification required by such Holder pursuant to this Section 8(b7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, and (y) in no event shall be limited to the net amount of any indemnity under this Section 7.2 exceed the gross proceeds (after deducting underwriters’ discounts and commissions) from the applicable offering received by such Holder in the offering to which such Registration Statement or Prospectus relatesSelling Holder.
(c) 7.3. Promptly after receipt by an indemnified party under this Section 8 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is to be made against the indemnifying party under this Section 87, notify the indemnifying such indemnified party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice shall deliver to the indemnifying party a written notice of the commencement thereof and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve shall have the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel satisfactory the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (who including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall not, except with the consent of be paid to the indemnified party, be counsel as incurred, within thirty (30) days of written notice thereof to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such (regardless of whether it is ultimately determined that an indemnified party of its election is not entitled to so assume the defense thereof, the indemnifying party shall not be liable to indemnification hereunder). Any such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and one local counsel), and expenses or (ii) the indemnifying party shall bear have failed to promptly assume the reasonable fees, costs and expenses defense of such separate counsel if action, claim or proceeding or (iiii) the use of counsel chosen by the indemnifying party named parties 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 action, claim or proceeding (including any impleaded parties) include both the such indemnified party and the indemnifying party party, and the such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional in addition to those available to the indemnifying party; (iii) party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party shall could not have employed counsel satisfactory to the indemnified party to faithfully represent the indemnified party within a reasonable time after notice of the institution of (in which case, if such action; or (iv) indemnified party notifies the indemnifying party shall authorize the indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. No , the indemnifying party shallshall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one action such action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all such indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 reasonable judgment or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter a conflict of interest may exist between such indemnified party and any other of such proceeding indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the fees and (ii) does not include any statement as expenses of such additional counsel or counsels). No indemnifying party shall be liable to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reasonsettlement of any action, then each applicable proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the indemnifying party agrees is unavailable to contribute to the aggregate an indemnified party hereunder in respect of any losses, claims, damages and damages, liabilities or expenses referred to in this Section 7:
(includingi) The indemnifying party, without limitationin lieu of indemnifying such indemnified party, legal shall contribute to the amount paid or other payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions 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 fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 7.4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d7.4(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no 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.
7.5. For purposes of If indemnification is available under this Section 87, the indemnifying parties shall indemnify each Person who controls indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights other equitable consideration referred to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director in Section 7.4.
7.6. The obligations of the Company shall have and the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder Selling Holders of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in under this Section 8 hereof, and will 7 shall survive the transfer completion of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale offering of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationa registration statement under this Agreement, and otherwise.
Appears in 2 contracts
Sources: Investment Agreement (Gleacher & Company, Inc.), Investment Agreement (First Albany Companies Inc)
Indemnification; Contribution. (a) The With respect to the Securities, the Company agrees to indemnify and hold harmless each Holder of Registrable Securitiesthe Dealer Managers, the Affiliateseach Holder, directorseach Participating Broker-Dealer, officers, employees, members, managers and agents of each Person who participates as an underwriter (any such Holder Person being an “Underwriter”) and each Person Person, if any, who controls any such Holder Person within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act with respect to the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense whatsoever, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed (or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto) pursuant to which Exchange Notes or Transfer Restricted Securities were registered under the 1933 Act, including all documents incorporated therein by reference, 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 not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and agrees to reimburse each such indemnified partyexpense whatsoever, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that of the aggregate amount paid in settlement of any such losslitigation, claimor any investigation or proceeding by any governmental agency or body, damagecommenced or threatened, liability or expense arises (i) out of or is any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 4(d) below) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made therein in reliance upon and in conformity with written information furnished to the Company by the Holder or on behalf of Underwriter expressly for use in a Registration Statement (or any such Holder specifically for inclusion therein including, without limitation, amendment thereto) or any notice and questionnaire, Prospectus (or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveamendment or supplement thereto).
(b) Each Holder severally (and severally, but not jointly) , agrees to indemnify and hold harmless the Company Company, each of the Dealer Managers, each Underwriter, each Participating Broker-Dealer and the other selling Holders, and each of its Affiliatestheir respective directors and officers, directors, employees, members, managers and agents and each Person Person, if any, who controls the Company Company, each of the Dealer Managers, any Underwriter, any Participating Broker-Dealer or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, to the fullest extent permitted by applicable law, from and against any and all lossesloss, claimsliability, damages claim, damage and expense described in the indemnity contained in Section 4(a) hereof, as incurred, but only with respect to untrue statements or liabilities to which they or any of them may become subject insofar as such lossesomissions, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained statements or omissions, made in a the Shelf Registration Statement as originally filed (or in any amendment thereof, or in the Disclosure Package thereto) or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, therein (or in any amendment thereof or supplement thereto, or arise out of or are based ) in reliance upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (and in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any conformity with written information relating with respect to such Holder furnished to the Company by or on behalf of such Holder specifically expressly for inclusion thereinuse in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto); provided, however, that the total amount to be indemnified by no such Holder pursuant to this Section 8(b) shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Transfer Restricted Securities pursuant to which such Shelf Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any action, such indemnified party will, if a claim action or proceeding commenced against it in respect thereof is to of which indemnity may be made against the indemnifying party under this Section 8sought hereunder, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the an indemnifying party (i) will shall not relieve such indemnifying party 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 under paragraph (a) or (b) above unless and to which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the extent defense of such action and such failure results in material prejudice action; provided, however, that counsel to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and shall not (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, ) also be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in without the same jurisdiction arising out prior written consent of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 4 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If at any time an indemnified party shall have requested an indemnifying party to reimburse the event indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the indemnity nature contemplated by Section 4(a)(ii) 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.
(e) If the indemnification provided for in this Section 8(a) or Section 8(b) above 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (includingexpenses incurred by such indemnified party, without limitationas incurred, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company on the one hand and the indemnified party Holders, Underwriters, Participating Broker-Dealers and the Dealer Managers on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and the Holders, Underwriters, Participating Broker-Dealers and the Dealer Managers 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 omission to state a material fact relates to information supplied by the indemnifying party on Company, the one hand Holders, Underwriters, Participating Broker-Dealers or the indemnified party on the other Dealer Managers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company, the Holders, Underwriters, Participating Broker-Dealers and the Dealer Managers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them Dealer 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 Section 8(d)4. The aggregate amount paid or payable of losses, liabilities, claims, damages 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 Section 8(d) 4 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 Section 8(d)4, no Dealer Manager, Holder, Participating Broker-Dealer or Underwriter shall be required to contribute any amount in excess of the amount by which the net proceeds received by such Holder from the sale of the Securities exceeds the amount of any damages which such Dealer Manager, Holder, Participating Broker-Dealer or Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission with respect to the Securities from the sale of the Securities. 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. For purposes of this Section 84, each Person Person, if any, who controls any Holder of Registrable Securitiesa Dealer Manager, agent Holder, Participating Broker-Dealer or underwriter Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Dealer Manager, Holder, agent Participating Broker-Dealer or underwriterUnderwriter and each director of the Company, and each Person Person, if any, who controls the Company within the meaning of either Section 15 of the Securities 1933 Act or the Exchange Act and each officer and director Section 20 of the Company 1934 Act shall have the same rights to contribution as the Company, subject in each case . The Dealer Managers’ respective obligations to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts 4 are several and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesnot joint.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Norfolk Southern Corp), Registration Rights Agreement (Norfolk Southern Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable SecuritiesInitial Purchaser, the Affiliateseach Holder, directorseach person, officersif any, employees, members, managers and agents of each such Holder and each Person who controls any such Initial Purchaser or Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (a “Controlling Person”) and the respective officers, to directors, partners, employees, representatives and agents of the fullest extent permitted by applicable lawInitial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified partythe Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that the Company will not be liable in any case to the extent that (i) insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of any such Initial Purchaser or Holder specifically to the Company expressly for inclusion use therein including, without limitation, any notice and questionnaire, or (ii) out with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of sales of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities made during concerned, to the extent that a Suspension Period after notice is prospectus relating to such Registrable Securities was required to be delivered by Such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given pursuant to Section 2(e)(ii) hereof. This such person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise havehave to such Indemnified Party.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company and each of Company, its Affiliatesdirectors, directorsofficers, employees, membersrepresentatives, managers and agents and each Person any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a “Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damages or liabilities to which they expense, liability, claim or any actions in respect thereof (including the reasonable cost of them investigation) which such Company Indemnified Party may incur or become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in including any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, in connection with such information; and, subject to the extentlimitation set forth immediately preceding this clause, but only to each Holder shall reimburse, as incurred, the extent, that Company for any legal or other expenses reasonably incurred by the Company or any such untrue statement controlling person in connection with investigating or alleged untrue statement defending any loss, damage, expense, liability, claim or omission or alleged omission is contained action in respect thereof. This indemnity agreement will be in addition to any written information relating to liability which such Holder furnished may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or on behalf proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Holder specifically for inclusion thereinProceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so omission to notify the indemnifying party (i) will such Indemnifying Party shall not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that liability which it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory may have to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationotherwise. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, culpability or a failure to act act, by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or insufficient actions referred to hold harmless an indemnified party for any reasontherein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holders or the Initial Purchasers on the other hand from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders or the Initial Purchasers on the other in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or any Initial Purchaser on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand Holders or the indemnified party on the other such Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities subsection (or actions in respect thereofd) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company Company, or the Company’s officers or directors or any of person controlling the officers, directors or controlling Persons referred to in this Section 8 hereof, Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Bradley Pharmaceuticals Inc), Registration Rights Agreement (Bradley Pharmaceuticals Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers Shareholder and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and Shareholder’s Covered Persons against any and all losses, claims, damages, liabilities and liabilities, judgments, fines, penalties, charges, costs, reasonable attorneys’ fees, amounts paid in settlement or expenses (“Indemnified Damages”), to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) Indemnified Damages arise out of of, or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon (i) any untrue statement or alleged untrue statement of a material fact contained in a the Registration Statement as originally filed or any post-effective amendment thereto or in any amendment thereoffiling made in connection with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered (“Blue Sky Filing”), or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 made therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any prospectus, including any preliminary prospectus, free writing prospectus or final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto, and including all information incorporated by reference therein), or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, (iii) any violation or alleged violation by the Company of the U.S. Securities Act, the U.S. Exchange Act, , any other law, including any state securities law, or any rule or regulation thereunder relating to the offer or sale of Registrable Securities pursuant to a Registration Statement or (iv) any breach of this Article III (the matters in the foregoing clauses (i) through (iv) being, collectively, “Violations”). The Company shall reimburse the Indemnified Persons, promptly as such expenses are incurred and agrees to reimburse each such indemnified party, as incurredare due and payable, for any legal fees or other reasonable expenses reasonably incurred by them in connection with investigating or defending any such lossIndemnified Damages. Notwithstanding anything to the contrary contained herein, claim, damage, liability or action the indemnification pursuant to this Section 3.6(a) shall not apply (whether or not the indemnified party is a party x) to any proceeding); provided, however, that the Company will not be liable in any case Indemnified Damages sought by an Indemnified Person to the extent that any such loss, claim, damage, liability arising out of or expense arises based upon a Violation (i) which occurs in reliance upon and in conformity with information furnished in writing to the Company by such Indemnified Person expressly for use in connection with the preparation of the Registration Statement or any such amendment thereof or supplement thereto or (ii) that results from a Shareholder’s use of a defective prospectus during a Grace Period in respect of which the Company has suspended the use of such prospectus and (y) to amounts paid in settlement of any Indemnified Damages if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed.
(b) In connection with any Registration Statement in which a Shareholder’s Registrable Securities are offered, such Shareholder agrees to severally and not jointly indemnify and hold harmless the Company and of its Covered Persons against any and all Indemnified Damages to which any of them may become subject insofar as such Indemnified Damages arise out of or is are based upon any Violation, to the extent, and only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission made therein Violation occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf such Shareholder expressly for use in connection with the preparation of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, and such Shareholder will severally and not jointly reimburse any legal or arise out of other expenses reasonably incurred by an Indemnified Person in connection with investigating 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 the Disclosure Package, or defending any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion thereinIndemnified Damages; provided, however, that the total indemnity contained in this Section 3.6(b) and the agreement with respect to contribution contained in Section 3.6(f) shall not apply to amounts paid in settlement of any Indemnified Damages if such settlement is effected without the prior written consent of such Shareholder; provided, further, that a Shareholder shall be liable under this Section 3.6(b) for only that amount of all Indemnified Damages as does not exceed the net amount of proceeds to be indemnified by such Holder Shareholder as a result of the sale of Registrable Securities pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesgiving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party any Person entitled to indemnification under this Section 8 3.6 (each, an “Indemnified Person”) of the written threat of or notice of the commencement of any actionaction or proceeding (including any governmental action or proceeding) involving Indemnified Damages, such indemnified party willIndemnified Person shall, if a claim in respect thereof is to be made against the indemnifying party any Person providing indemnity under this Section 83.6 (each, notify an “Indemnifying Person”), promptly deliver to the indemnifying party in writing Indemnifying Person a written notice of the written threat of or notice of the commencement thereof; but of such action or proceeding. The failure to deliver written notice to the failure so to notify Indemnifying Person within a reasonable time of the indemnifying party (i) will commencement of any such action or proceeding shall not relieve it from such Indemnifying Person of any liability to the Indemnified Person under paragraph (a) or (b) above unless and this Section 3.6, except to the extent that the Indemnifying Person is materially prejudiced in its ability to defend such action or proceeding as a result of such failure, and shall not relieve such Indemnifying Person of any liability other than pursuant to this this Section 3.6. In case any such action or proceeding is brought against any Indemnified Person and such failure results in material prejudice Indemnified Person seeks or intends to seek indemnity from an Indemnifying Person, the indemnifying party and forfeiture by Indemnifying Person shall have the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe Indemnifying Person so desires, jointly with any other indemnifying party Indemnifying Person similarly notifiednoticed, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent control of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own with counsel (and one 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 mutually satisfactory to the indemnified party to represent Indemnifying Person and the indemnified party within a reasonable time after notice of the institution of Indemnified Person. In any 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 shallproceeding, in connection with any one action or separate Indemnified Person may retain its own counsel, but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than that counsel will be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the retention of that counsel, (ii) the Indemnifying Person does not assume the defense of such proceeding in a timely manner or (iii) in the reasonable opinion of counsel retained by the Indemnified Person, the representation by such counsel for the Indemnified Person and the Indemnifying Person would be inappropriate due to actual or potential differing interests between such Indemnified Person and any other party represented by such counsel in such proceeding, in which case the Indemnifying Person shall pay reasonable fees for up to one separate firm of attorneys legal counsel for all Indemnified Persons (in addition to any local counsel) for all indemnified parties, if required), and such legal counsel shall be selected by the Indemnified Persons. An indemnifying party The Indemnified Person shall not be liable under this Section 8 to reasonably cooperate with the Indemnifying Person in connection with any indemnified party regarding any settlement negotiation 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 is consented to by such indemnifying party. No indemnifying party, in the defense of any such claim action or litigation, proceeding or Indemnified Damages by the Indemnifying Person and shall furnish to the Indemnifying Person all information reasonably available to the Indemnified Person which relates to such action or proceeding or Indemnified Damages. The Indemnifying Person shall keep the Indemnified Person reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No Indemnifying Person shall, except with without the prior written consent of each indemnified party, the Indemnified Person consent to entry of any judgment or enter into any settlement or other compromise unless such settlement or compromise (i) includes which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a full release of such indemnified party from all liability on claims that are the subject matter of with respect to such proceeding and (ii) does not include Indemnified Damages or which includes any statement admission as to or any admission of fault, culpability or a failure to act by or on behalf the part of any indemnified partysuch Indemnified Person.
(d) In the event that the indemnity provided in The indemnification required by this Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may 3.6 shall be subject in such proportion as is appropriate to reflect the relative fault made by periodic payments of the indemnifying party on amount thereof during the one hand and course of the indemnified party on the other in connection with the statements investigation or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)defense, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied and when reasonably detailed invoices are received by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesIndemnifying Person.
(e) The provisions indemnity agreements contained herein shall be in addition to (i) any cause of this Section 8 will remain in full force and effect, regardless of any investigation made by action or on behalf of any Holder of Registrable Securities or the Company or any similar right of the officers, directors Indemnified Person against the Indemnifying Person or controlling Persons referred others and (ii) any liabilities the Indemnifying Person may be subject to in this Section 8 hereof, and will survive the transfer of Registrable Securitiespursuant to applicable law.
(f) To the extent any indemnification by an indemnifying party Indemnifying Person is prohibited or limited by law, the Indemnifying Person agrees, in lieu of indemnifying party agrees such Indemnified Person, to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 3.6(a) or Section 3.6(b), as applicable, to the fullest extent permitted by law; provided, however, that: that (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇U.S. Securities Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of such fraudulent misrepresentation; misrepresentation and (ii) contribution by any seller of Registrable Securities Shareholder shall be limited in amount to the net amount of proceeds received by such seller Shareholder from the sale of such Registrable Securities pursuant to such Shelf RegistrationRegistration Statement, less the amount of any damages that such Shareholder has otherwise been required to pay in connection with such sale (including any payments pursuant to this Section 3.6).
(g) The indemnification and contribution provided for under this Agreement will be in addition to any other rights to indemnification or contribution that any Indemnified Person may have pursuant to law or contract (and the Company and its subsidiaries shall be considered the indemnitors of first resort in all such circumstances to which this Section 3.6 applies) and will remain in full force and effect regardless of any investigation made by or on behalf of any Indemnified Person and will survive the transfer of Registrable Securities and the termination or expiration of this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Electra Battery Materials Corp)
Indemnification; Contribution. (a) The Company agrees to shall indemnify and hold harmless each Holder of Registrable Securitiesthe Selling Stockholders, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person person (if any) who controls any such Holder Selling Stockholder within the meaning of either Section 15 of the Securities Act or of 1933, as amended (the Exchange "Act"), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, damages and liabilities and expenses to which they expense (including all reasonable fees and disbursements of counsel incurred in defending against any such claim, damage or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofliability) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon caused by any untrue statement or alleged untrue statement of a material fact contained in a the registration statement filed or to be filed with the Securities and Exchange Commission (the "Commission"), in connection with the Public Offering, as the same may be amended or supplemented from time to time (the "Registration Statement as originally filed Statement") or in any amendment thereofprospectus filed with, or delivered to, the Disclosure PackageCommission in connection with the Public Offering, or caused by any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under in which they were made) , not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages damages, or liabilities arise out are caused by an untrue statement of a material fact contained in, or are based upon any violation material fact omitted from, information relating to a Selling Stockholder furnished in writing to the Company by such Selling Stockholder for use in the Registration Statement or any amendment or supplement thereto, or any such prospectus, then the Company shall have no obligation hereunder to indemnify the Selling Stockholder furnishing such information.
(b) Each Selling Stockholder shall indemnify each of the Securities ActCompany and the other Selling Stockholders, Exchange and each person (if any) who controls the Company or such other Selling Stockholder within the meaning of Section 15 of the Act against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of counsel incurred in defending against any such claim, damage or state securities laws, upon liability) caused by any untrue statement or alleged untrue statement of a material fact contained in a the Registration Statement as originally filed or in any amendment thereofprospectus filed with, or delivered to, the Commission in connection with the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration StatementPublic Offering, or in caused by any amendment thereof or supplement thereto, 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 the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under in which they were made) , not misleading, to the extent, but only with respect to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder Selling Stockholder furnished to the Company in writing by or on behalf of such Holder specifically Selling Stockholder expressly for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder use in the offering to which such Registration Statement or Prospectus relatesany amendment or supplement thereto, or any such prospectus, PROVIDED, HOWEVER, no Selling Stockholder shall be liable in an amount that exceeds the aggregate public offering price of the Stockholder Shares sold by the Selling Stockholder, net of the underwriting discount.
(c) Promptly after receipt by an indemnified party under The indemnity agreements of the Company and the Selling Stockholders contained in this Section 8 of notice of the commencement 2 shall remain operative and in full force and effect regardless of any action, such indemnified party will, if a claim in respect thereof is to be investigation made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyparty and shall survive delivery of shares of Common Stock pursuant to the Public Offering.
(d) In the event that the indemnity order to provide for just and equitable contribution in circumstances in which indemnification provided for in Section 8(aparagraphs (a) or (of this Section 8(b) above 2 is unavailable to or insufficient to hold harmless an indemnified party for any reasonunavailable, then the Company and each applicable indemnifying party agrees to of the Selling Stockholders shall contribute to the aggregate losses, claims, damages damages, liabilities and liabilities expenses (including, without limitation, legal or other expenses reasonably including all reasonable fees and disbursements of counsel incurred in connection with investigating defending against any claim, damage, or defending same) (collectivelyliability), “Losses”) to which such indemnifying party one or more of the Selling Stockholders may be subject in such proportion as is appropriate to reflect the relative relevant fault of the indemnifying party on the one hand Company and the indemnified party on the other respective Selling Stockholders in connection with the statements or omissions which that resulted in such losses, claims, damages or damages, liabilities (or actions in respect thereof), and expenses as well as any other relevant equitable considerations. The relative fault shall be determined by reference to; PROVIDED, among other thingsHOWEVER, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent that:
(i) in any case where any Selling Stockholder is seeking contribution hereunder such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Selling Stockholder shall be entitled to contribution from the remaining Selling Stockholders pursuant to this Agreement only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any Person who was not guilty case be required to contribute or make any payments under this paragraph (d) which in the aggregate exceed his pro rata share of such fraudulent misrepresentation. For purposes losses, claims, damages, liabilities and expenses determined in accordance with the total number of Company Shares and Stockholder Shares sold by each respective party hereto PROVIDED, HOWEVER, that no Selling Stockholder shall be liable to contribute an amount that exceeds the aggregate public offering price of the Stockholder Shares sold by the Selling Stockholder, net of the underwriting discount; and
(iii) neither the Company nor any Selling Stockholder will be required to make any contribution to another Selling Stockholder with respect to matters for which the other Selling Stockholder would not otherwise be entitled to be indemnified under paragraph (a) of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any 2 had such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesindemnification been available.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Selling Stockholder Agreement (Brooks Automation Inc)
Indemnification; Contribution. (a) The Company agrees Strategic REIT and the Issuer agree to indemnify indemnify, defend and hold harmless each Holder of Registrable SecuritiesInitial Purchaser, the Affiliateseach Holder, directorseach person (a “Controlling Person”), officersif any, employees, members, managers and agents of each such Holder and each Person who controls any such Initial Purchaser or Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, to directors, partners, employees, representatives and agents of any Initial Purchaser, the fullest extent permitted by applicable lawHolders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified partyStrategic REIT and the Issuer shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that Strategic REIT and the Company will Issuer shall not be liable required to provide any indemnification pursuant to this Section 6(a) in any such case to the extent that insofar as any such loss, claimdamage, expense, liability, claim or action arises out of or is based upon (i) any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of an Initial Purchaser or a Holder to Strategic REIT expressly for use in, any Shelf Registration Statement or any Prospectus or (ii) a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities by an Indemnified Party during a Suspension Period, provided such Indemnified Party received, prior to such disposition, a Suspension Notice with respect to such Suspension Period; provided further, however, that this indemnity agreement will be in addition to any liability which Strategic REIT and the Issuer may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless Strategic REIT and the Issuer, each of its directors, officers, employees, representatives, agents and any person who controls Strategic REIT and the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Guarantor Indemnified Party”) from and against any loss, damage, liability expense, liability, claim or expense any actions in respect thereof (including the reasonable cost of investigation) which such Guarantor Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (iA) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to Strategic REIT expressly for use in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein to state a material fact in reliance upon and in conformity connection with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein includingInformation, without limitationwhich material fact was not contained in such Holder Information, and which material fact was either required to be stated in any notice and questionnaireShelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading, (B) a sale, by such Holder pursuant to a Shelf Registration Statement in or with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that Strategic REIT shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), or (iiC) out of sales a public sale of Registrable Securities made during a Suspension Period after notice is given by such Holder without delivery, if required by the Securities Act, of the most recent applicable Prospectus provided to such Holder by Strategic REIT pursuant to Section 2(e)(ii3(i) hereofor Section 2(d)(i)(C), provided Strategic REIT shall have theretofore provided such Holder with copies of such Prospectus in a timely manner so as to permit such delivery; and, subject to the limitation set forth in the immediately preceding clause, each Holder shall reimburse, as incurred, Strategic REIT and the Issuer for any legal or other expenses reasonably incurred by Strategic REIT and the Issuer or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which the Company such Holder may otherwise havehave to Strategic REIT and the Issuer or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(bc) Each Holder severally If any action, suit or proceeding (and not jointlyeach, a “Proceeding”) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and is brought against any and all lossesperson in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), claims, damages or liabilities to which they or any of them such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation be sought (the “Indemnifying Party”) in writing of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf institution of such Holder specifically for inclusion thereinProceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount omission to be indemnified by so notify such Holder pursuant to this Section 8(b) Indemnifying Party shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that liability which it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory may have to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationotherwise. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. No Indemnifying Party shall, without the prior written consent to the entry of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, fault or culpability or a failure to act by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a6 is unavailable to an Indemnified Party under Section 6(a) or Section 8(b) above is unavailable to 6(b), or insufficient to hold harmless an indemnified party for such Indemnified Party harmless, in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by Strategic REIT and the indemnifying party Issuer, on the one hand hand, and by the indemnified party Holders or the Initial Purchasers, on the other hand, from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of Strategic REIT and the Issuer, on the one hand, and of the Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of Strategic REIT and the Issuer, on the one hand, and of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by Strategic REIT and the indemnifying party on Issuer or by the one hand Holders or the indemnified party on the other Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) Strategic REIT, the Issuer, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 thereof6(d) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or the Company Initial Purchasers or any of person controlling any Holder or Initial Purchaser, or Strategic REIT, or the officersIssuer, or Strategic REIT’s or the Issuer’s officers or directors or any person controlling Persons referred to in this Section 8 hereof, Strategic REIT or the Issuer and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (Strategic Hotels & Resorts, Inc)
Indemnification; Contribution. (a) The Incident to any registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless each underwriter, each Holder or Other Holder who offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of Registrable Securitiespartners and stockholders of any such partners), the Affiliates, and directors, officers, employees, members, managers employees and agents of each such Holder any of them (a "Selling Holder"), and each Person person who controls any such Holder of them within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable lawAct (a "Controlling Person")), from and against any and all losses, claims, damages, liabilities expenses and liabilities, joint or several (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred), to which they they, or any of them them, may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of under the Securities Act, the Exchange Act or other federal or state securities lawsstatutory law or regulation, at common law or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofotherwise, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon on (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement (including any related preliminary or in definitive prospectus, or any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretoto such registration statement or prospectus), or arise out of or are based upon the (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) it not misleading, to the extent, but only to the extent, that or (iii) any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to violation by the Company by of the Securities Act, any state securities or on behalf of "blue sky" laws or any rule or regulation thereunder in connection with such Holder specifically for inclusion thereinregistration; provided, however, that the total amount Company will not be liable to be indemnified the -------- ------- extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder pursuant or Controlling Person expressly for use in such registration statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them, and each person who controls any of them 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, expenses and liabilities, joint or several, to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise to the same extent provided in the immediately preceding sentence; provided, however, that no Selling Holder shall -------- ------- be required to indemnify any Person against any liability arising from any untrue or misleading statement or omission contained in any preliminary prospectus if such deficiency is corrected in the final prospectus or for any liability which arises out of the failure of any Person to deliver a prospectus as required by the Securities Act. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 8(b4.4(a) shall be limited to exceed the net lesser of (i) such Selling Holder's pro rata share of the total of such losses, claims, damages or liabilities or (ii) the proceeds (after deducting underwriters’ discounts and commissions) received by such Selling Holder in the offering to which from its sale of Registrable Securities under such Registration Statement or Prospectus relatesregistration statement.
(cb) Promptly after receipt If the indemnification provided for in Section 4.4(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under this Section 8 of notice of the commencement in respect of any actionlosses, such indemnified party willclaims, if a claim in respect thereof is damages, expenses or liabilities referred to be made against the therein, then each indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not4.4, in any event, relieve the lieu of indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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 thereunder, shall not, except with the consent of the indemnified party, be counsel contribute to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel amount paid or any other expenses subsequently incurred payable by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses as a result 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, expenses or liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, the other Selling Holders and the underwriters from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the indemnifying party on Company, the one hand other Selling Holders and the indemnified party on the other underwriters in connection with the statements or omissions which resulted in such losses, claims, damages damages, expenses or liabilities (or actions in respect thereof)liabilities, as well as any other relevant equitable considerations; provided, however, that in the event of a registration statement filed in response to a demand under Section 4.2 and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the other Selling Holders and the underwriters shall in all cases be governed by clause (ii) above. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company, the Selling Holders and 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 omission to state a material fact relates to information supplied by the indemnifying party on Company, the one hand Selling Holders or the indemnified party on the other underwriters and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company, the Selling Holders, and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8(d4.4(b) were determined by pro rata or per capita allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 8(d). The amount paid or payable by an indemnified party as a result 4.4(b) in excess of the lesser of (i) such Selling Holder's pro rata share of the total of such losses, claims, damages or liabilities or (or actions in respect thereofii) referred to above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred the proceeds received by such indemnified party in connection with investigating or defending any Selling Holder from its sale of Registrable Securities under such action or claimregistration statement. Notwithstanding the provisions of this Section 8(d), no Person No person found 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 found guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(ec) The provisions amount paid by an indemnifying party), or payable to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 8 4.4 shall be deemed to 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, payable as the same are incurred. The indemnification and contribution provided for in this Section 4.4 will remain in full force and effect, effect regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company indemnified parties or any officer, director, employee, agent or controlling person of the officersindemnified parties. No indemnifying party, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale defense of Registrable Securities which Person is guilty any such claim or litigation, shall enter into a consent of fraudulent misrepresentation (within entry of any judgment or enter into a settlement without the meaning of Section 11(f) consent of the ▇▇▇▇ ▇▇▇) in connection with such sale shall indemnified party, which consent will not be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationunreasonably withheld.
Appears in 1 contract
Sources: Stockholders and Rights Agreement (Click Commerce Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliatesits officers, directors, officers, employees, members, managers partners, agents and agents of each such Holder employees and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities liabilities, expenses and expenses actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofStatement, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnairequestionnaire (including, for the avoidance of doubt, Exhibit B hereto), or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii1(c) hereof. This indemnity agreement clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Sequential Brands Group, Inc.)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless (i) each Holder of Registrable SecuritiesHolder, the Affiliates(ii) each person (a “Controlling Person”), directorsif any, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and (iii) the respective officers, to the fullest extent permitted by applicable lawdirectors, partners, members, employees, representatives and agents of each Holder or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, Prospectus or any preliminaryfree writing prospectus, final or summary Prospectus or Free Writing Prospectus included in including any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or any free writing prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified partythe Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that the Company will shall not be liable required to provide any indemnification pursuant to this Section 5(a) in any such case to the extent that insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of any such a Holder specifically to the Company expressly for inclusion therein including, without limitationuse in, any notice and questionnaireShelf Registration Statement or any Prospectus; provided, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise havehave to such Indemnified Party.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless (i) the Company and each of Company, (ii) its Affiliates, directors, employeesofficers, members, managers employees and agents and each Person (iii) any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a “Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damages or liabilities to which they expense, liability, claim or any actions in respect thereof (including the reasonable cost of them investigation) which such Company Indemnified Party may incur or become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in a conformity with information (the “Holder Information”) furnished in writing by or on behalf of such Holder to the Company expressly for use in, any Shelf Registration Statement as originally filed or in any amendment thereofProspectus, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact in connection with such Holder Information required to be stated therein in any Shelf Registration Statement or Prospectus or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementHolder Information, in light of the circumstances under which they such statements were made) , not misleading; and, subject to the extentlimitation set forth in the immediately preceding clause, but only to each Holder shall reimburse, as incurred, the extent, that Company for any legal or other expenses reasonably incurred by the Company or any such untrue statement controlling person in connection with investigating or alleged untrue statement defending any loss, damage, expense, liability, claim or omission or alleged omission is contained action in respect thereof. This indemnity agreement will be in addition to any written information relating to liability which such Holder furnished may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or on behalf proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 5(a) or Section 5(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Holder specifically for inclusion thereinProceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount omission to be indemnified by so notify such Holder pursuant to this Section 8(b) Indemnifying Party shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that liability which it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory may have to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationotherwise. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, fault or culpability or a failure to act by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a5 is unavailable to an Indemnified Party under Section 5(a) or Section 8(b) above is unavailable to 5(b), or insufficient to hold harmless an indemnified party for such Indemnified Party harmless, in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company, on the one hand hand, and of the indemnified party Holders, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the Holders, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand or the indemnified party on the other Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 5 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 thereof5(d) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)5, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 5 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 5 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or any person controlling any Holder, or the Company Company, or the Company’s officers or directors or any of person controlling the officers, directors or controlling Persons referred to in this Section 8 hereof, Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (American Oil & Gas Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable SecuritiesInitial Purchaser, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person person, if any, who controls any such Initial Purchaser or Holder (a “Controlling Person”) within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, to directors, partners, employees, representatives and agents of any Initial Purchaser, the fullest extent permitted by applicable lawHolders or any Controlling Person (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any action in respect thereof (including the reasonable cost of them investigation) which such Holder Indemnified Party may incur or become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified partythe Company shall reimburse, as incurred, the Holder Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that the Company will indemnity agreement contained in this subsection (a) shall not be liable in any case inure to the extent that benefit of any Holder Indemnified Party insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of any such Holder specifically Indemnified Party to the Company expressly for inclusion therein includinguse in connection with any Shelf Registration Statement or Prospectus; provided further, without limitationthat no Holder Indemnified Party shall be entitled to indemnity pursuant to this Section 6(a) to the extent, any notice and questionnaireonly to the extent, such loss, damage, expense, liability, claim or (ii) action arises out of sales (1) a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities made by such Holder Indemnified Party during a Suspension Period, provided such Holder Indemnified Party received, prior to such disposition, a Suspension Notice with respect to such Suspension Period after notice is given or (2) such Holder Indemnified Party’s failure to deliver, if required pursuant to Section 2(e)(ii) hereofthe Securities Act, the most recent applicable Prospectus provided to such Holder by the Company or on file with the SEC. This indemnity agreement will be in addition to any liability which the Company may otherwise havehave to any Holder or any of its Controlling Persons.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company and each of Company, its Affiliatesdirectors, directorsofficers, employees, membersrepresentatives, managers and agents and each Person any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a “Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damages or liabilities to which they expense, liability, claim or any actions in respect thereof (including the reasonable cost of them investigation) which such Company Indemnified Party may incur or become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in a Registration Statement as originally filed or conformity with information (the “Holder Information”) furnished in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company writing by or on behalf of such Holder specifically to the Company expressly for inclusion thereinuse in any Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading; (B) a sale, by such Holder, pursuant to a Shelf Registration Statement, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder with a Suspension Notice; or (C) a public sale of Registrable Securities by such Holder without delivery, if required by the Securities Act, of the most recent applicable Prospectus provided to such Holder by the Company or on file with the SEC; and, subject to the limitation set forth in the immediately preceding clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such other person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any Company Indemnified Party. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount omission to be indemnified by notify such Holder pursuant Indemnifying Party, or the delay of such notification, shall not relieve such Indemnifying Party from any liability which it may have to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party Indemnified Party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and 6 except to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred Indemnifying Party is materially prejudiced by such indemnified party in connection with the defense thereof other than reasonable costs of investigationomission or delay. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least forty-five (45) days prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, culpability or a failure to act act, by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6, or insufficient to hold harmless an indemnified party for such Indemnified Party harmless, in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities (includingexpenses, without limitationliabilities, legal claims or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject actions in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company on the one hand and of the indemnified party Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand or the indemnified party on the other Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities subsection (or actions in respect thereofd) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or the Initial Purchasers or any person controlling any Holder, or the Company or any of the Company’s directors, officers, directors employees, representatives, agents or any person controlling Persons referred to in this Section 8 hereof, the Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify shall indemnify, defend and hold harmless the Holder and each Holder of Registrable Securities, the Affiliatesits officers, directors, officers, employees, membersagents, managers and agents of each such Holder and each Person who controls any such Holder partners or controlling persons (within the meaning of either the Securities Act) (each, an "indemnified party") from and against, and shall reimburse such indemnified party with respect to, any and all claims, suits, demands, causes of action, losses, damages, liabilities, costs or expenses ("Liabilities") to which such indemnified party may become subject under the Securities Act or the Exchange Actotherwise, arising from or relating to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofA) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally filed such registration statement, any prospectus contained therein or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon (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 case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementtherein, in light of the circumstances under in which they were made) , not misleading; PROVIDED, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, howeverHOWEVER, that the Company will shall not be liable in any such case to the extent that any such loss, claim, damage, liability or expense Liability arises (i) out of or is based upon an untrue statement or omission so made in conformity with written information furnished by or on behalf of such indemnified party specifically for use in the registration statement; PROVIDED FURTHER, that the Company shall not be liable in any such case to the extent that any such Liability arising out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity any preliminary prospectus if (i) the Holder under an obligation to send or deliver a copy of the prospectus with written information furnished or prior to the delivery of written confirmation of the sale of Registrable Securities failed to deliver such prospectus to the person asserting such Liability who purchased such Registrable Securities which are the subject thereof from such Holder and (ii) the prospectus would have corrected such untrue statement or omission; and PROVIDED FURTHER, that the Company shall not be liable in any such case to the extent that any Liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission in the prospectus, if such untrue statement or alleged untrue statement, omission or alleged omission is corrected in an amendment or supplement to the prospectus and if, having previously been furnished by or on behalf of any the Company with copies of the prospectuses so amended or supplemented and having been obligated to deliver such prospectuses, the Holder specifically for inclusion therein includingthereafter failed to deliver such prospectus as so amended or supplemented, without limitation, any notice and questionnaire, prior to or (ii) out of sales concurrently with the sale of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability the person asserting such Liability who purchased such Registrable Securities which are the Company may otherwise havesubject thereof from such Holder.
(b) Each Holder severally (and not jointly) agrees to indemnify shall indemnify, defend and hold harmless the Company Company, and each of its Affiliatesofficers, directors, employees, membersagents, managers and agents and each Person who controls the Company partners, or controlling persons (within the meaning of either the Securities Act) (each, an "indemnified party") from and against, and shall reimburse such Company:________ Holder:________ 5 indemnified party with respect to, any and all Liabilities to which such indemnified party may become subject under the Securities Act or the Exchange Actotherwise, arising from or relating to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon (A) any untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally filed such registration statement, any prospectus contained therein or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon (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 case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementtherein, in light of the circumstances under in which they were made) , not misleading; PROVIDED, that the Holder will be liable in any such case to the extent, but and only to the extent, that any such Liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission is contained made in any such registration statement, prospectus or amendment or supplement thereto in reliance upon written information relating to such Holder furnished to the Company by or on behalf of such the Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder use in the offering to which such Registration Statement or Prospectus relatesregistration statement.
(c) Promptly after receipt by an any indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party willshall, if a claim in respect thereof is to be made against another party (the "indemnifying party under this Section 8party") hereunder, notify the indemnifying such party in writing of the commencement thereof; , but the failure omission so to notify the indemnifying party (i) will shall not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations Liability which it may have to any the indemnified party other than under this section and shall only relieve it from any Liability which it may have to the indemnification obligation provided in paragraph (a) or (b) aboveindemnified party under this section if and to the extent it is actually prejudiced by such omission. The In case any such action shall be brought against any indemnified party and such indemnified party shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, 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, except as provided in the next sentence, after notice from the indemnifying party to such the indemnified party of its election so to so assume and undertake the defense thereof, the indemnifying party shall not be liable to such the indemnified party under this section for any legal expenses of other counsel or any other expenses subsequently incurred by such the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding investigation and of liaison with counsel so selected, PROVIDED, HOWEVER, that if the defendants in any such action include both the indemnifying party and such indemnified party and the indemnified party shall have reasonably concluded based upon a written opinion of counsel that there may be reasonable defenses available to it which are different from those available to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own select a separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with (and one local counsel), and subject to the indemnifying party shall bear following sentence) the reasonable fees, costs expenses and expenses fees of such separate counsel if (i) the use of counsel chosen and other reasonable expenses related to such participation to be reimbursed by the indemnifying party to represent as incurred. If 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 Company is the indemnifying party it shall pay the reasonable expenses and fees of only one separate counsel whose selection is approved by the largest group of similarly situated indemnified parties as measured by the aggregate value of securities registered by such group. Any indemnified party shall have reasonably concluded that there may who chooses not to be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to represented by 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 foregoing separate counsel shall be entitled, at the expense its own expense, to be represented by counsel of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyits own selection.
(d) In order to provide for just and equitable contribution, if a claim for indemnification is made pursuant to the event provisions of this Section, but is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that such indemnification is not available (except for the indemnity provided reasons set forth in Section Sections 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reasonand (b)), then each applicable the indemnifying party agrees to party, in lieu of indemnifying the indemnified party, shall contribute to the aggregate Company:________ Holder:________ 6 amount paid by the indemnified party as a result of such losses, claims, damages and liabilities (includingdamages, without limitationliabilities, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefit and relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)party, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other Company and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Holder agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were was determined by a pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the such equitable considerations referred to above in this Section 8(d)considerations. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(d) shall be deemed to also include any legal or other expenses reasonably incurred by such the indemnified party in connection with investigating that would otherwise have been subject to reimbursement or defending any such action or claim. Notwithstanding indemnification by the indemnifying party pursuant to the provisions of this Section 8(d), no Person Section. No party 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesother party.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Empire Financial Holding Co)
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actshall indemnify, to ------------------------------- the fullest extent permitted by applicable law, from each holder of Registrable Securities, its officers, directors and agents, if any, and each Person, if any, who controls such holder within the meaning of Section 15 of the Securities Act, against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions proceedings in respect thereof) arise out of and expenses (under the Securities Act or are based upon common law or otherwise), joint or several, resulting from any violation by the Company of the provisions of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement any registration statement or prospectus (and as originally filed amended or in any amendment thereof, supplemented if amended or the Disclosure Package, supplemented) or any preliminary, final preliminary prospectus or summary Prospectus or Free Writing Prospectus included in caused by any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus, in light of the circumstances under which they were made) not misleading, except to the extent that such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses are caused by any untrue statement or alleged untrue statement contained in or by any omission or alleged omission from information concerning any holder furnished in writing to the Company by such holder expressly for use therein. If the offering pursuant to any registration statement provided for under this Section 2 is made through underwriters, no action or failure to act on the part of such underwriters (whether or not such underwriter is an affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence. If the offering pursuant to any registration statement provided for under this Section 2 is made through underwriters, the Company agrees, to the extent required by such underwriters, to enter into an underwriting agreement in customary form with such underwriters and agrees to reimburse indemnify such underwriters, their officers, directors and agents, if any, and each Person, if any, who controls such indemnified party, underwriters within the meaning of Section 15 of the Securities Act to the same extent as incurred, for any legal or other expenses reasonably incurred by them in connection hereinbefore provided with investigating or defending respect to the indemnification of the holders of Registrable Securities; provided that the Company shall not be required to indemnify any such underwriter, or any officer or director of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or action (whether proceedings in respect thereof) or not the indemnified party expense for which indemnification is claimed results from such underwriter's failure to send or give a party to any proceeding); provided, however, that the Company will not be liable in any case copy of an amended or supplemented final prospectus to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such Person asserting an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished at or prior to the Company by or on behalf written confirmation of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which to such Person is guilty of fraudulent misrepresentation (within if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection underwriter was provided with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationamended or supplemented final prospectus.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each of the broker-dealers whose Registrable Securities are included in an Exchange Registration Statement, each Electing Holder of whose Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder Securities are included in a Shelf Registration Statement and each Person person, if any, who controls any such Holder Electing Holder, or such broker dealer within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and Act as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense whatsoever, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Exchange Registration Statement or Shelf Registration Statement, as originally filed or in any amendment thereof, or the Disclosure Packagecase may be, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, pursuant to which Exchange Securities or arise out of Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, 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 (not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any prospectus contained in any such Exchange Registration Statement or Shelf Registration Statement, as the case of the Disclosure Packagemay be, or any preliminaryamendment or supplement thereto, final or summary Prospectus or in any Issuer Free Writing Prospectus included (when taken together with the related prospectus, prospectus supplement and related documents) related thereto, or the omission or alleged omission therefrom of a material fact necessary in any such Registration Statementorder to make the statements therein, in the light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and agrees to reimburse each such indemnified partyexpense whatsoever, as incurred, for to the extent of the aggregate amount paid in settlement of any legal litigation, or other expenses any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that any such settlement is effected with the prior written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel chosen by any indemnified party), reasonably incurred by them 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 lossuntrue statement or omission, claimor any such alleged untrue statement or omission, damage, liability to the extent that any such expense is not paid under subparagraph (i) or action (whether or not the indemnified party is a party to any proceeding)ii) above; provided, however, that the Company will shall not be liable in to any case such person to the extent that any such loss, liability, claim, damage, liability damage or expense arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of such person expressly for use in an Exchange Registration Statement or Shelf Registration Statement (or any such Holder specifically for inclusion therein including, without limitationamendment thereto), any notice and questionnairerelated prospectus (or any amendment or supplement thereto), or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveIssuer Free Writing Prospectus related thereto.
(b) Each Holder severally (and Electing Holder, severally, but not jointly) , agrees to (i) indemnify and hold harmless the Company Company, the Guarantors and the other Electing Holders, and each of its Affiliatestheir respective directors and officers, directors, employees, members, managers and agents and each Person person, if any, who controls the Company Company, the Guarantors or any other Electing Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all lossesloss, claimsliability, damages claim, damage and expense described in the indemnity contained in Section 5(a) hereof, as incurred, but only with respect to untrue statements or liabilities to which they or any of them may become subject insofar as such lossesomissions, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained statements or omissions, made in a any Shelf Registration Statement as originally filed (or in any amendment thereofthereto), or in the Disclosure Package any prospectus included therein (or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, ) or any preliminary, final or summary Prospectus or related Issuer Free Writing Prospectus included in any such Registration Statement, reliance upon and in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any conformity with written information relating to such Holder furnished to the Company by or on behalf of such Electing Holder specifically expressly for inclusion thereinuse in the Shelf Registration Statement (or any amendment thereto) or such prospectus (or any amendment or supplement thereto) or any related Issuer Free Writing Prospectus, and (ii) 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; provided, however, that the total amount to be indemnified by no such Holder pursuant to this Section 8(b) holder shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Electing Holder in from the offering sale of Registrable Securities pursuant to which such Shelf Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give written notice of the commencement promptly to each indemnifying party of any actionaction or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party 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. In case any such action shall be brought against any indemnified party will, if a claim in respect thereof is to be made against the and it shall notify an indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent , such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses expenses, in each case subsequently incurred by such indemnified party party, in connection with the defense thereof other than reasonable costs of investigation). Notwithstanding To the extent that an indemnifying party’s rights party does not assume the defense of any such action, in no event shall such indemnifying party be liable for the prior sentence, the indemnified party shall have the right fees and expenses of more than one counsel (in addition to employ any local counsel) separate from its own counsel (and one 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 for all 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances. No indemnifying party shall, be liable for without the fees and expenses prior written consent of more than one separate firm of attorneys (in addition to any local counsel) for all the indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 5 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 5 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (includingexpenses incurred by such indemnified party, without limitationas incurred, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and the indemnified party 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 omission to state a material fact relates to information supplied by the such indemnifying party on the one hand or the by such indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d5(d). The aggregate amount paid or payable of losses, liabilities, claims, damages 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 Section 8(d5(d) shall be deemed to include any reasonable out-of-pocket 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 Section 8(d5(d), no Person Electing Holder shall be required to contribute any amount in excess of the amount by which the dollar amount of the proceeds received by such holder from the sale of any Registrable Securities exceeds the amount of any damages which the Electing 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 person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 85(d), each Person person, if any, who controls any Electing Holder of Registrable Securities, agent or underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Electing Holder, agent or underwriter, and each Person director of the Company, 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 and each officer and director of the Company shall have the same rights to contribution as the Company, subject . The Electing Holders’ obligation in each case this Section 5(d) to contribute shall be several in proportion to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total principal amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, registered by them and will survive the transfer of Registrable Securitiesnot joint.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Exchange and Registration Rights Agreement (Johnsondiversey Holdings Inc)
Indemnification; Contribution. (ai) The Company agrees Big shall, notwithstanding termination of this Agreement and without limitation as to time, indemnify and hold harmless harmless, each Qualified Holder of Registrable Securities, the Affiliatesofficers, directors, officerspartners, employeesagents, members, managers investment advisors and agents employees of each such Holder and of them, each Person who controls any such Qualified Holder (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners, agents and employees of each such controlling Person, to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities liabilities, costs (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or preparing to defend or defending against or appearing as a third party witness in connection therewith) and expenses, including expenses to which they or any of them may become subject insofar investigation (collectively, "Losses"), as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any registration statement, prospectus or form of prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplement thereto or in any amendment thereof or supplement theretopreliminary prospectus, 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 (in the case of the Disclosure Package, any prospectus or any preliminary, final form of prospectus or summary Prospectus or Free Writing Prospectus included in any such Registration Statementsupplement thereto, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case except to the extent that any such loss, claim, damage, liability or expense arises (ia) out of or is based upon any such untrue statement or alleged the untrue statement or omission in the form of a preliminary prospectus was corrected in the final prospectus or alleged omission made therein (b) such are based upon information regarding such Qualified Holder furnished in reliance upon and in conformity with written information furnished writing to the Company Big by or on behalf of such Qualified Holder expressly for use therein to the extent that such information was reasonably relied on by Big in the preparation thereof. The obligations of Big to each Indemnified Party shall be separate obligations, and the liability of Big to any such Holder specifically for inclusion therein including, without limitation, Indemnified Party hereunder shall not be extinguished solely because any notice and questionnaire, or other Indemnified Party is not entitled to indemnity hereunder.
(ii) out of sales In connection with any registration statement in which a Qualified Holder of Registrable Securities made during a Suspension Period after notice is given pursuant participating, such Qualified Holder of Registrable Securities shall furnish to Section 2(e)(ii) hereof. This indemnity agreement will be Big in addition to writing such information as Big reasonably requests for use in connection with any liability which the Company may otherwise have.
(b) Each registration statement or prospectus and each Qualified Holder agrees, severally (and not jointly) agrees , to indemnify and hold harmless the Company and each of Big, its Affiliates, directors, officers, agents and employees, members, managers and agents and each Person who controls the Company Big (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act), and the directors, officers, agents or employees of each such controlling Person, to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages Losses (as determined by a court of competent jurisdiction in a final judgment not subject to appeal or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise review) arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofregistration statement, prospectus, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statementform of prospectus, or in any amendment thereof or supplement thereto, or arise arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Times Mirror Co /New/)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities liabilities, expenses and expenses actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii1(f)(ii) hereof. This indemnity agreement clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 85, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationthereof. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and but the indemnifying indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel if unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with be inappropriate due to a conflict of interestinterest in the reasonable judgment of the indemnified party; (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 in writing to employ separate counsel at the expense of the indemnifying party; provided, however, in the event that there are multiple indemnified parties, such indemnified parties shall in no case be entitled to more than two counsels; or (iii) the indemnifying party has failed to assume defense of such action within a reasonable time following notice from the indemnified party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified partiesparties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 8 5 to any indemnified party regarding any settlement 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 is consented to in writing by such 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 or compromise if any pending or threatened 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 or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyproceeding.
(d) In the event that the indemnity provided in Section 8(a5(a) or Section 8(b5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party for with respect to any reasonloss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the New Common Stock, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party 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 benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of New Common Stock in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the value of having the Registrable Securities registered under the Securities Act. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.or
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees Agilent and World Trade jointly and severally agree to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates▇▇▇▇▇▇▇ ▇▇▇▇▇ and its affiliates, directors, officers, employees, members, managers agents and agents of controlling persons (▇▇▇▇▇▇▇ ▇▇▇▇▇ and each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, other person being an “Indemnified Party”) from and against any and all losses, claims, damagesdamages and liabilities, liabilities and expenses joint or several, to which they such Indemnified Party becomes subject under any applicable law, or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (otherwise related to or actions in respect thereof) arise arising out of or are based upon in connection with (a) any violation of the Securities Acttransaction contemplated by this Agreement, Exchange Act or state securities laws, or upon and (b) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any information (whether oral or in any amendment thereof, written) or the Disclosure Package, documents furnished or made available by World Trade or Agilent or any preliminary, final of their affiliates in connection with any transaction contemplated pursuant to this Agreement or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 in order to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementnot misleading, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that neither Agilent nor World Trade shall be liable, in the Company will not be liable in any case of this clause (b), to the extent that any such losslosses, claimclaims, damage, liability damages or expense arises (i) liabilities arise out of or is are based upon any on such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information relating to ▇▇▇▇▇▇▇ ▇▇▇▇▇ (or the relevant affiliate thereof) furnished to the Company Agilent or World Trade by ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use therein. In no event shall Agilent or on behalf World Trade be liable for fees and expenses of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or more than one counsel (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(blocal counsel) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, separate from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its their own counsel (and one 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. No indemnifying party shall, for all Indemnified Parties in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances allegations or allegations, be liable circumstances. Agilent and World Trade jointly and severally agree to promptly reimburse any Indemnified Party for the all expenses (including reasonable counsel fees and expenses expenses) as they are incurred in connection with the investigation of, preparation for or defense of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit claim or any action or proceeding arising from any of the matters referred to in respect of which indemnification or contribution may be sought hereunder (the preceding sentence, whether or not the indemnified parties are actual such Indemnified Party is a party and whether or potential parties to not such claim claim, action or action) unless such settlement, compromise proceeding is initiated or consent is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act brought by or on behalf of World Trade or Agilent or the relevant issuer or whether or not resulting in any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party liability. Neither Agilent nor World Trade shall be liable for any reasonsettlement of any proceeding effected without its written consent, then each applicable indemnifying party agrees but if settled with such consent or if there shall be a final judgment for the plaintiff, Agilent and World Trade jointly or severally agree to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. Agilent and World Trade further jointly and severally agree not to assert any claim against any Indemnified Party for consequential, punitive or exemplary damages on any theory of liability in connection with the transactions described in or contemplated by this Agreement. Neither Agilent nor World Trade shall be liable to an Indemnified Party under clause (a) of the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is finally determined by a court of competent jurisdiction to have resulted primarily from such Indemnified Party’s bad faith, gross negligence or willful misconduct. If the indemnification of an Indemnified Party provided for in this Agreement is for any reason held unenforceable, Agilent and World Trade jointly and severally agree to contribute to the aggregate losses, claims, damages and or liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to for which such indemnifying party may be subject indemnification is held unenforceable (a) in such proportion as is appropriate to reflect the relative fault of the indemnifying party benefits to World Trade and Agilent, on the one hand hand, and the indemnified party ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the other hand, of the relevant transaction contemplated pursuant to this Agreement, or (b) (but only if) the allocation provided for in connection with the statements or omissions which resulted clause (a) is for any reason prohibited by law, in such lossesproportion as is appropriate to reflect not only the relative benefits referred to in clause (a) but also World Trade and Agilent’s relative fault, claimson the one hand, damages or liabilities (or actions in respect thereof)and the relative fault of ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the other hand, as well as any other relevant equitable considerations. The Agilent and World Trade jointly and severally agree that for the purposes of this paragraph the relative fault shall be determined by reference tobenefits to World Trade and Agilent, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriterhand, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the other hand, shall be deemed to be in the same proportion that the total value received or contemplated to be received by World Trade and/or Agilent in any transactions contemplated pursuant to this Agreement bears to the fees paid or to be paid to ▇▇▇▇▇▇▇ ▇▇▇▇▇ with respect to such transaction; provided, however, that, to the extent permitted by applicable law, in no event shall the Indemnified Parties be required to contribute in respect of a specific transaction an aggregate amount in excess of the fees actually paid in such transaction to ▇▇▇▇▇▇▇ ▇▇▇▇▇. The foregoing contribution agreement shall be in addition to any rights that any Indemnified Party may have at common law or otherwise. No investigation or failure to investigate by any Indemnified Party shall impair the foregoing indemnification and contribution agreement or any other right an Indemnified Party may have. Agilent and World Trade jointly and severally agree that, without ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ prior written consent, neither World Trade nor Agilent nor any of their affiliates or subsidiaries will settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification has been or could be sought under the indemnification provisions of this Agreement (whether or not ▇▇▇▇▇▇▇ ▇▇▇▇▇ or any other Indemnified Party is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent (a) includes an unconditional written release, in form and substance satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and each Indemnified Party, from all liability arising out of such claim, action or proceeding and (b) does not include any statement as to, or an admission of, fault, culpability or failure to act by or on behalf of any Indemnified Party. In the event that an Indemnified Party is requested or required to appear as a witness in any action brought by or on behalf of or against Agilent or any of its subsidiaries or affiliates in which such Indemnified Party is not named as a defendant, World Trade and Agilent agree to reimburse such Indemnified Party for all reasonable expenses incurred by it in connection with such sale shall be entitled Indemnified Party’s appearing and preparing to contribution from any Person involved in appear as such sale a witness, including, without limitation, the fees and expenses of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationits legal counsel.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of If any Registrable Securities, Securities are included in a registration statement under this Agreement:
7.1. To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from each of the Trust and the Corporation, severally and not jointly, shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, each Person who participates as a sales or placement agent or underwriter in any offering of the Registered Securities and each officer, director, partner and employee of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and disbursements and reasonable expenses of investigation, incurred by such party or to which they or any of them such party may become subject pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Actfollowing statements, Exchange Act omissions or state securities laws, or upon any violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in such registration statement, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary preliminary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon final Prospectus
(ii) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will indemnification required by this Section 7.1 shall not be liable apply to amounts paid in any case to the extent that settlement of any such loss, claim, damage, liability or expense if such settlement is effected by the indemnified person without the consent of the Trust or the Corporation (which consent shall not be unreasonably withheld), nor shall the Trust or the Corporation be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished to the Company Trust or the Corporation by or on behalf of the indemnified party expressly for use in connection with such registration; and provided further that the indemnity agreement contained in this Section 7 shall not apply to the extent that any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, loss is based on or (ii) arises out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact fact, contained in a Registration Statement as originally filed or in omitted from any amendment thereofpreliminary Prospectus if the final Prospectus shall correct such untrue statement or alleged untrue statement, or in such omission or alleged omission, and a copy of the Disclosure Package final Prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if an underwriter, placement agent or Selling Holder was under an obligation to deliver such final Prospectus and failed to do so.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Trust, the Corporation, each of the Trustees of the Trust, each of the directors of the Corporation, each of the officers of the Trust or the Corporation who shall have signed the registration statement, each Person, if any, who controls the Trust or the Corporation within the meaning of the Securities Act, any Holder Free Writing Prospectusother Selling Holder, preliminary, final or summary Prospectus included in any controlling Person of any such Registration Statementother Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or in to which any amendment thereof of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or supplement theretoother federal or state laws, or but only insofar as such losses, claims, damages, liabilities and expenses 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 the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementViolation, in light of the circumstances under which they were made) not misleading, each case to the extentextent that, but only to the extentextent that, that any such untrue statement Violation arises out of or alleged untrue statement or omission or alleged omission is contained based upon and was made in any written reliance upon information relating to furnished by such Selling Holder furnished to the Company by or on behalf of expressly for use in connection with such Holder specifically for inclusion thereinregistration; provided, however, that (x) the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.indemnification
(c) 7.3. Promptly after receipt by an indemnified party under this Section 8 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is to be made against the indemnifying party under this Section 87, notify the indemnifying such indemnified party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice shall deliver to the indemnifying party a written notice thereof and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve shall have the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with nationally recognized counsel experienced in such matters reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel and to not have the indemnifying party assume its defense, with counsel satisfactory the fees, disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 to the extent of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (who including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall not, except with the consent of be paid to the indemnified party, be counsel as incurred, within thirty (30) days of written notice thereof to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such (regardless of whether it is ultimately determined that an indemnified party of its election is not entitled to so assume the defense thereof, the indemnifying party shall not be liable to indemnification hereunder). Any such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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, in any such action include both the indemnified party action, claim or proceeding 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions participate in the same jurisdiction arising out of the same general circumstances or allegationsdefense thereof, be liable for but the fees and expenses of more than one separate firm such counsel shall be the expenses of attorneys such indemnified party unless (in addition to any local counseli) for all indemnified parties. An the indemnifying party shall not be liable under has agreed to pay such fees and expenses or (ii) the indemnifying
7.4. If the indemnification required by this Section 8 7 from the indemnifying party is unavailable to any an indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding hereunder in respect of which indemnification any losses, claims, damages, liabilities or contribution may be sought hereunder expenses referred to in this Section 7:
(whether or not the indemnified parties are actual or potential parties to such claim or actioni) unless such settlement, compromise or consent is consented to by such indemnifying party. No The indemnifying party, in the defense lieu of any indemnifying such claim or litigation, shall, except with the consent of each indemnified party, consent shall contribute to entry of any judgment the amount paid or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release of payable by such indemnified party from all liability on claims that are the subject matter as a result of such proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions 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 fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 7.4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d7.4(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no 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.
7.5. For purposes of If indemnification is available under this Section 87, the indemnifying parties shall indemnify each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case indemnified party to the applicable terms and conditions of full extent provided in this Section 8(d). Notwithstanding 7 without regard to the foregoing, the total amount relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to be contributed by any in Section 7.4 except that no Selling Holder pursuant to this Section 8(d) shall be limited to liable for any amount in excess of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder it receives in the offering which is the subject of the indemnification proceeding.
7.6. The obligations of the Trust and the Corporation under this Section 7 shall be in addition to any liability which the Trust and the Corporation may otherwise have to the persons specified in Section 7.1 and the obligations of the Selling Holders under this Section 7 shall be in addition to any liability which such Registration Statement Persons may otherwise have to the Trust and the Corporation. The remedies provided in this Section 7 are not exclusive and shall not limit any rights or Prospectus relatesremedies which may otherwise be available to an indemnified party at law or in equity.
(e) 7.7. The provisions obligations of this Section 8 will remain in full force the Trust, the Corporation and effect, regardless of any investigation made by or on behalf of any Holder the Selling Holders of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in under this Section 8 hereof, and will 7 shall survive the transfer completion of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale offering of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationa registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Starwood Hotel & Resorts Worldwide Inc)
Indemnification; Contribution. (ai) The Company agrees shall, without limitation as to time, indemnify and hold harmless harmless, to the full extent permitted by law, each Holder of Registrable SecuritiesStockholder, the Affiliatesofficers, directors, officers, employees, members, managers agents and agents employees of each such Holder and of them, each Person who controls any each such Holder Person (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act), the officers, directors, agents and employees of each such controlling person and any financial or investment adviser (each, an "Indemnified Stockholder"), to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities liabilities, actions or proceedings (whether commenced or threatened) reasonable costs (including, without limitation, reasonable costs of preparation and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities reasonable attorneys' fees) and reasonable expenses (or actions in respect thereofincluding reasonable expenses of investigation) arise (collectively, "Losses"), as incurred, arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed Statement, prospectus or form of prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplements thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in not misleading, except to the case of extent, but only to the Disclosure Packageextent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any preliminary, final information so furnished in writing by the Company to such Stockholder expressly for use in such Registration Statement or summary Prospectus prospectus and that such statement or Free Writing Prospectus included omission was reasonably relied upon by such Stockholder in any preparation of such Registration Statement, in light prospectus or form of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding)prospectus; provided, however, that the Company will shall not be liable in any such case to the extent that the Company has furnished in writing to such Stockholder within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to such Stockholder, and such Stockholder failed to include such information therein; provided, further, however, that the Company shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriter(s) within the meaning of the Securities Act to the extent that any such loss, claim, damage, liability or expense arises (i) Losses arise out of or is are based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity any preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with written information furnished or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (C) the Company has complied with its obligations under Section 4(e)(iii). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or Indemnified Stockholder.
(ii) out In connection with any Registration Statement in which a Stockholder is participating, such Stockholder, or an authorized officer of sales of Registrable Securities made during a Suspension Period after notice is given pursuant such Stockholder, shall furnish to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder in writing such information as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally (and not jointly) agrees , to indemnify and hold harmless indemnify, to the Company and each of full extent permitted by law, the Company, its Affiliates, directors, officers, agents and employees, members, managers and agents and each Person who controls the Company (within the meaning of either Section 15 of the Securities Act or and Section 20 of the Exchange Act), to and the fullest extent permitted by applicable lawdirectors, officers, agents or employees of such controlling persons (each, an "Indemnified Company", and together with the Indemnified Stockholders, the "Indemnified Parties"), from and against any and all lossesLosses, claimsas incurred, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed Statement, prospectus or form of prospectus or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, supplements thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that any such untrue statement or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by such Stockholder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was reasonably relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, however, that such Stockholder shall not be liable in any written such case to the extent that such Stockholder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information relating to expressly for use in such Holder Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any selling Stockholder hereunder be greater in amount than the after-tax dollar amount of the proceeds (net of payment of all expenses) received by such Stockholder upon the sale of the Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder specifically for inclusion thereinIndemnified Company.
(iii) Any Indemnified Party shall give prompt notice to the party or parties from which such indemnity is sought (the "Indemnifying Parties") of the commencement of any action, suit, proceeding or investigation or written threat thereof (a "Proceeding") with respect to which such Indemnified Party seeks indemnification or contribution pursuant hereto; provided, however, that the total amount failure to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, so notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will Indemnifying Parties shall not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Parties from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, liability except to the extent that it the Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall wishhave the right, jointly with any other indemnifying party similarly notifiedexercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume assume, at the Indemnifying Parties' expense, the defense thereofof any such Proceeding, with counsel reasonably satisfactory to such indemnified party Indemnified Party; provided, however, that an Indemnified Party or Indemnified Parties (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided if more than one such Indemnified Party is named in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Proceeding) shall have the right to employ its own separate counsel (in any such Proceeding and one local counsel)to participate in the defense thereof, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be at the expense of such Indemnified Party or Indemnified Parties unless: (ix) the use of counsel chosen by the indemnifying party Indemnifying Parties agree to represent the indemnified party would present pay such counsel with a conflict of interestfees and expenses; (iiy) the actual Indemnifying Parties fail promptly to assume the defense of such Proceeding or potential defendants in, fail to employ counsel reasonably satisfactory to such Indemnified Party or targets of, Indemnified Parties; or (z) the named parties to any such action Proceeding (including any impleaded parties) include both the indemnified party such Indemnified Party or Indemnified Parties and the indemnifying party Indemnifying Parties, and the indemnified party shall have reasonably concluded that there may be legal one or more defenses available to it and/or other indemnified parties which such Indemnified Party or Indemnified Parties that are different from or additional to those available to the indemnifying party; (iii) Indemnifying Parties, in which case, if such Indemnified Party or Indemnified Parties notifies 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 Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallIndemnifying Parties, the Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one action such Proceeding or separate but substantially similar or related actions Proceedings in the same jurisdiction jurisdiction, arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all indemnified partiessuch Indemnified Party or Indemnified Parties. An indemnifying party Whether or not such defense is assumed by the Indemnifying Parties, such Indemnifying Parties or Indemnified Party or Indemnified Parties will not be subject to any liability for any settlement made without its or their consent (but such consent will not be unreasonably withheld). The Indemnifying Parties shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 (A) provides for other than monetary damages without the consent of the Indemnified Party or compromise unless such settlement Indemnified Parties (which consent shall not be unreasonably withheld or compromise delayed) or (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (iiB) does not include any statement as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or any admission Indemnified Parties of faulta release, culpability in form and substance satisfactory to the Indemnified Party or a failure Indemnified Parties, from all liability in respect of such Proceeding for which such Indemnified Party would be entitled to act by or on behalf of any indemnified partyindemnification hereunder.
(div) In If the event that the indemnity indemnification provided for in this Section 8(a4(g) or Section 8(b) above is unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless an indemnified party for any reasonLosses in respect of which this Section 4(g) would otherwise apply by its terms, then each applicable Indemnifying Party, in lieu of indemnifying party agrees such Indemnified Party, shall have a joint and several obligation to contribute to the aggregate lossesamount paid or payable by such Indemnified Party as a result of such Losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of and relative benefit to the indemnifying party Indemnifying Party, on the one hand hand, and the indemnified party such Indemnified Party, on the other hand, in connection with the actions, statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party, on the one hand, and Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the indemnifying party on the one hand by, such Indemnifying Party or the indemnified party on the other Indemnified Party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The 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 Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 4(g)(i) or 4(g)(ii) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d4(g)(iv) were determined by pro pro-rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d4(g)(iv). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d4(g)(iv), no Person an Indemnifying Party that is a selling Stockholder shall not be required to contribute any amount in excess of the amount by which the net after-tax proceeds received by such Indemnifying Party exceeds the amount of any damages that such Indemnifying Party has otherwise been required to pay by reasons 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Warrant Agreement (Eplus Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder of Registrable Securitiescovered by any Registration Statement, the Affiliates, directors, officers, employees, members, managers and agents of (ii) each such Holder and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls any such Holder (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a "controlling Person"), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities and expenses to which they liabilities, judgments or any of them may become subject insofar as such lossesexpenses, claims, damages, liabilities and expenses joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities lawsupon, or upon are caused by any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed or in Prospectus (or any amendment thereof, or the Disclosure Packagesupplement thereto), or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in not misleading, or a violation by the case Company of the Disclosure PackageSecurities Act or any state securities law, or any preliminaryrule or regulation promulgated under the Securities Act or any state securities law, final or summary Prospectus or Free Writing Prospectus included in any other law applicable to the Company relating to any such Registration Statementregistration or qualification, in light except insofar as such losses, claims, damages, liabilities, judgments or expenses of the circumstances under which they were made) not misleading, and agrees to reimburse each any such indemnified party, as incurred, for any legal or other expenses reasonably incurred Person; (x) are caused by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission or alleged omission made therein that is based upon information relating to such indemnified Person furnished in reliance upon and in conformity with written information furnished writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder specifically for inclusion therein includingsold Securities to a Person to whom there was not sent or given, without limitationat or prior to the written confirmation of such sale, any notice and questionnairea copy of the Prospectus, as amended or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which supplemented, if the Company may otherwise have.
(b) Each shall have previously furnished copies thereof to such Holder severally (in accordance with this Agreement and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing said Prospectus, preliminaryas amended or supplemented, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any would have corrected such untrue statement or alleged untrue statement omission; or omission or alleged omission is contained in (z) as a result of the use by an indemnified Person of any written information relating to such Holder furnished to Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified securities by such Holder pursuant to this Section 8(b) Holder. In case any action shall be limited to brought or asserted against any of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering indemnified Persons with respect to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of indemnity may be sought against the commencement of any actionCompany, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, Person shall promptly notify the indemnifying party in writing of Company and the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party Company 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 . Such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Person shall have the right to employ its own separate counsel (in any such action and one local counsel)to participate in the defense thereof, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be at the expense of the indemnified Person unless (i) the use employment of such counsel chosen shall have been specifically authorized in writing by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; Company, (ii) the actual or potential defendants inCompany shall have failed to assume the defense and employ counsel, or targets of, (iii) the named parties to any such action (including any implied parties) include both the indemnified party Person and the indemnifying party Company and the indemnified party Person shall have reasonably concluded been advised in writing by its counsel 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; Company (iii) in which case the indemnifying party Company shall not have employed counsel satisfactory the right to assume the defense of such action on behalf of the indemnified party to represent Person), it being understood, however, that the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party Company shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallnot, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction or proceedings arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified partiesPersons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. An indemnifying party The Company shall not be liable under this Section 8 for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified party regarding Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of any judgment with respect on or otherwise seek to terminate any pending or threatened action, claim, action, suit litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the any indemnified parties are actual or potential parties to such claim or action) Person is a party thereto), unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partycompromise, consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (i) termination includes an unconditional release of such each indemnified party Person from all liability on claims that are the subject matter arising out of such proceeding action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (iiwithin the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) does not include any statement the Company, and the respective officers, directors, partners, employees, representatives and agents of each, to the same extent as the foregoing indemnity from the Company to or any admission each of faultthe indemnified Persons, culpability or a failure but only (i) with ---- respect to act actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any indemnified partyRegistration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Purchaser from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(dc) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 2.7 is unavailable to or insufficient to hold harmless an indemnified party for under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any reasonlosses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party agrees to (in the case of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claimsclaims damages, damages and liabilities liabilities, judgments or expenses (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 referred to in clause (i) above but also the relative fault of the Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities, judgments or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Company or the indemnified party on the other by such Holder and the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.Section
Appears in 1 contract
Sources: Registration Rights Agreement (Senesco Technologies Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) each Holder of Registrable Securitiescovered by any Registration Statement, the Affiliates, directors, officers, employees, members, managers and agents of (ii) each such Holder and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each Person, if any, who controls any such Holder (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) any such Holder or underwriter (any of the Persons referred to in this clause (iii) being hereinafter referred to as a “controlling Person”), and (iv) the respective officers, directors, partners, employees, representatives and agents of any such Holder or underwriter or any controlling Person (any Person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an “indemnified Person”), to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities and expenses to which they liabilities, judgments or any of them may become subject insofar as such lossesexpenses, claims, damages, liabilities and expenses joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, “Claims”), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities lawsupon, or upon are caused by any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed or in Prospectus (or any amendment thereof, or the Disclosure Packagesupplement thereto), or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in not misleading, or a violation by the case Company of the Disclosure PackageSecurities Act or any state securities law, or any preliminaryrule or regulation promulgated under the Securities Act or any state securities law, final or summary Prospectus or Free Writing Prospectus included in any other law applicable to the Company relating to any such Registration Statementregistration or qualification, in light except insofar as such losses, claims, damages, liabilities, judgments or expenses of the circumstances under which they were made) not misleading, and agrees to reimburse each any such indemnified party, as incurred, for any legal or other expenses reasonably incurred Person; (x) are caused by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission or alleged omission made therein that is based upon information relating to such indemnified Person furnished in reliance upon and in conformity with written information furnished writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that such Holder specifically for inclusion therein includingsold Securities to a Person to whom there was not sent or given, without limitationat or prior to the written confirmation of such sale, any notice and questionnairea copy of the Prospectus, as amended or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which supplemented, if the Company may otherwise have.
(b) Each shall have previously furnished copies thereof to such Holder severally (in accordance with this Agreement and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing said Prospectus, preliminaryas amended or supplemented, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any would have corrected such untrue statement or alleged untrue statement omission; or omission or alleged omission is contained in (z) as a result of the use by an indemnified Person of any written information relating to such Holder furnished to Prospectus when, upon receipt of a notice from the Company of the existence of any fact of the kind described in Section 2.3(b)(iv), the indemnified Person or the related Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified securities by such Holder pursuant to this Section 8(b) Holder. In case any action shall be limited to brought or asserted against any of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering indemnified Persons with respect to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of indemnity may be sought against the commencement of any actionCompany, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, Person shall promptly notify the indemnifying party in writing of Company and the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party Company 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 . Such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Person shall have the right to employ its own separate counsel (in any such action and one local counsel)to participate in the defense thereof, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be at the expense of the indemnified Person unless (i) the use employment of such counsel chosen shall have been specifically authorized in writing by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; Company, (ii) the actual or potential defendants inCompany shall have failed to assume the defense and employ counsel, or targets of, (iii) the named parties to any such action (including any implied parties) include both the indemnified party Person and the indemnifying party Company and the indemnified party Person shall have reasonably concluded been advised in writing by its counsel 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; Company (iii) in which case the indemnifying party Company shall not have employed counsel satisfactory the right to assume the defense of such action on behalf of the indemnified party to represent Person), it being understood, however, that the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party Company shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallnot, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction or proceedings arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified partiesPersons, which firm shall be (x) designated by such indemnified Persons; and (y) reasonably satisfactory to the Company. An indemnifying party The Company shall not be liable under this Section 8 for any settlement of any such action or proceeding effected without the Company’s prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified party regarding Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of any judgment with respect on or otherwise seek to terminate any pending or threatened action, claim, action, suit litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the any indemnified parties are actual or potential parties to such claim or action) Person is a party thereto), unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partycompromise, consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (i) termination includes an unconditional release of such each indemnified party Person from all liability on claims that are the subject matter arising out of such proceeding action, claim litigation or proceeding.
(b) Each Holder of Restricted Securities covered by any Registration Statement agrees, severally and not jointly, to indemnify and hold harmless the Company and its directors, officers and any Person controlling (iiwithin the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) does not include any statement the Company, and the respective officers, directors, partners, employees, representatives and agents of each such Person, to the same extent as the foregoing indemnity from the Company to or any admission each of faultthe indemnified Persons, culpability or a failure but only (i) with respect to act actions based on information relating to such Holder furnished in writing by or on behalf of such Holder expressly for use in any indemnified partyRegistration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Holder from the sale or other disposition of his or its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling Person in respect of which indemnity may be sought against a Holder of Restricted Securities covered by any Registration Statement, such Holder shall have the rights and duties given the Company in Section 2.7(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling Person shall have the rights and duties given to each Holder by Section 2.7(a).
(dc) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 2.7 is unavailable to or insufficient to hold harmless an indemnified party for under Section 2.7(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any reasonlosses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party agrees to (in the case of the Holders severally and not jointly), in lieu of indemnifying such indemnified party, shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claims, damages and liabilities damages, liabilities, judgments or expenses (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holder on the other hand from sale of Restricted Securities, or (ii) if such 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 referred to in clause (i) above but also the relative fault of the Company and such Holder in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities, judgments or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of such Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Company or the indemnified party on the other by such Holder and the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.7(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Holder of Restricted Securities covered by any Registration Statement agree that it would not be just and equitable if contribution pursuant to this Section 8(d2.7(c) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 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 Section 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 claimimmediately preceding paragraph. Notwithstanding the provisions of this Section 8(d2.7(c), no Holder (and none of its related indemnified Persons) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation misrepresentations (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. For purposes of The indemnity and contribution provisions contained in this Section 8, each 2.7 are in addition to any liability which the indemnifying Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall may otherwise have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling indemnified Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securitiesabove.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Financial Advisory Agreement (Senesco Technologies Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable SecuritiesHolder, the Affiliateseach person, directorsif any, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (a “Controlling Person”) and the respective officers, to directors, partners, employees, representatives and agents of the fullest extent permitted by applicable lawHolders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified partythe Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that the Company will not be liable in any case to the extent that (i) insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of any such Holder specifically to the Company expressly for inclusion use therein including, without limitation, any notice and questionnaire, or (ii) out with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of sales of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities made during concerned, to the extent that a Suspension Period after notice is prospectus relating to such Registrable Securities was required to be delivered by such Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Holder results from the fact that there was not sent or given pursuant to Section 2(e)(iisuch person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, (x) hereof. This a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder or (y) an amendment or supplement to such final Prospectus if the Company had previously furnished copies thereof to such Holder; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise havehave to such Indemnified Party.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company and each of Company, its Affiliatesdirectors, directorsofficers, employees, membersrepresentatives, managers and agents and each Person any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a “Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damages or liabilities to which they expense, liability, claim or any actions in respect thereof (including the reasonable cost of them investigation) which such Company Indemnified Party may incur or become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in including any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, to the extent, but only to the extent, that any in each case in connection with such untrue statement or alleged untrue statement or omission or alleged omission is contained information furnished in any written information relating to such Holder furnished to the Company writing by or on behalf of such Holder specifically to the Company expressly for inclusion thereinsuch use; and, subject to the limitation set forth immediately preceding this clause, each Holder 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, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so omission to notify the indemnifying party (i) will such Indemnifying Party shall not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that liability which it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory may have to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationotherwise. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, culpability or a failure to act act, by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities, claims or insufficient actions referred to hold harmless an indemnified party for any reasontherein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holders on the other hand from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders on the other in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand or the indemnified party on the other Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities subsection (or actions in respect thereofd) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or any person controlling any Holder or the Company Company, or the Company’s officers or directors or any of person controlling the officers, directors or controlling Persons referred to in this Section 8 hereof, Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (Genome Therapeutics Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify In connection with any registration of Registrable Securities, Moelis Holdings will indemnify, defend and hold harmless each Holder of Registrable SecuritiesSMBC Unit-Holder, the Affiliatesits affiliates, directors, officers, employees, members, managers officers and agents of each such Holder SMBC Unit-Holders and each Person person who controls any such SMBC Unit-Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (collectively, to the fullest extent permitted by applicable law, “Indemnified Persons”) from and against any and all direct losses, claims, damages, liabilities liabilities, obligations, costs and expenses to which they or (including, without limitation, as a result of any of them may become subject insofar as such lossesnotices, actions, suits, proceedings, claims, demands, assessments, judgments, awards, costs, penalties, taxes and reasonable expenses, including reasonable attorneys’ and other professionals’ fees and disbursements, but excluding any consequential damages, liabilities and expenses ) (or actions in respect thereofcollectively “Losses”) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon caused by (i) any untrue statement or alleged untrue statement of a material fact contained in a any part of any Registration Statement as originally filed or in any Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, used in connection with the Registrable Securities or arise out of any Issuer FWP 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 Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementa Prospectus, in the light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company Moelis Holdings will not be liable in required to indemnify any case to the extent that Indemnified Person for any such loss, claim, damage, liability or expense arises (i) out of or is based upon Losses resulting from any such untrue statement or alleged omission if such untrue statement or omission or alleged omission was made therein in reliance upon on and in conformity with written information with respect to any Indemnified Person furnished to the Company by Moelis Holdings in writing by, or on behalf of any such Holder specifically for inclusion therein including, without limitationof, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveSMBC Unit-Holders expressly for use therein.
(b) Each Holder severally (In connection with any Registration Statement, Prospectus or Issuer FWP, each SMBC Unit-Holder, jointly and not jointly) agrees to indemnify severally, will indemnify, defend and hold harmless the Company Moelis Holdings, its directors, its officers and each of its Affiliatesperson, directorsif any, employees, members, managers and agents and each Person who controls the Company Moelis Holdings (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, ) to the fullest same extent permitted by applicable lawas the foregoing indemnity from Moelis Holdings to each SMBC Unit-Holder, from and against but only with respect to information furnished to Moelis Holdings in writing by, or on behalf of, any and all losses, claims, damages or liabilities to which they SMBC Unit-Holder or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained Indemnified Persons expressly for use in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementIssuer FWP; and provided, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; providedfurther, however, that in no event shall the total amount to be indemnified by such liability for indemnity of any SMBC Unit-Holder pursuant to under this Section 8(b13.9(b) shall be limited to exceed the net dollar amount of the proceeds (after deducting underwriters’ discounts and commissionsnet of any underwriting discount or commission or other selling expenses) received by such SMBC Unit-Holder in from the offering sale of the Registrable Securities giving rise to which such Registration Statement or Prospectus relatesindemnification.
(c) Promptly after receipt by an indemnified party under this In case any claim, action or proceeding (including any governmental investigation) is instituted involving any person in respect of which indemnity may be sought pursuant to Section 8 of notice of the commencement of any action13.9(a) or 13.9(b), such indemnified party willperson (the “Indemnified Party”) will promptly, if a claim but in respect thereof is to be made against the indemnifying party under this Section 8any event within 10 Business Days, notify the indemnifying party person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of writing, and the commencement thereof; but Indemnifying Party shall have the failure so right to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless participate in, and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notifiedIndemnifying Party so desires, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who the Indemnified Party; provided, that the failure of any Indemnified Party to give notice within the time limit provided herein shall notnot relieve the Indemnifying Party of its obligations under Section 13.9(a) or 13.9(b), except with the consent of the indemnified party, be counsel to the indemnifying party)extent that the Indemnifying Party is actually and materially prejudiced by such failure to give notice. In any such claim, and, except as provided in action or proceeding where the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume Indemnifying Party has assumed the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Indemnified Party shall have the right right, but not the obligation, to employ participate in any such defense and to retain its own counsel (and one local counsel), and but the indemnifying party shall bear the reasonable fees, costs fees 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 will 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 such Indemnified Party unless the indemnifying partyIndemnified Party and the Indemnified Party have been advised by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them. No indemnifying party shallIt is understood that the Indemnifying Party will not, in connection with any one claim, action or separate but substantially similar proceeding or related claims, actions or proceedings in the same jurisdiction arising out of the same general circumstances or allegationsjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all indemnified partiessuch Indemnified Parties and that all such reasonable fees and expenses will be reimbursed as they are incurred. An indemnifying party shall not In the case of the retention of any such separate firm for the Indemnified Parties, such firm will be liable under this Section 8 designated in writing by the Indemnified Parties. No Indemnified Party will, without the prior written consent of the Indemnifying Party, settle, compromise or offer to any indemnified party regarding any settlement 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 any Indemnified Party is seeking indemnity hereunder. The Indemnifying Party will not be liable for any settlement of any claim, action or contribution may be sought hereunder (whether proceeding effected without its written consent, but if such claim, action or not proceeding is settled with such consent or if there has been a final judgment for the indemnified parties are actual plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any Loss by reason of such settlement or potential parties to such claim or action) unless such settlementjudgment. No Indemnifying Party will, without the prior written consent of the Indemnified Party, settle, compromise or consent is consented offer to by such 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 settle or compromise any pending or threatened proceeding in respect of which any Indemnified Party is seeking indemnity hereunder, unless such settlement or compromise includes (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of in connection with such proceeding and proceeding, (ii) does not include no finding or admission of any statement as to violation of law or any admission violation of fault, culpability or a failure to act by or on behalf the rights of any indemnified partyperson by the Indemnified Party or any of its Affiliates can be made as the result of such action, and (iii) the sole relief (if any) provided is monetary damages that are reimbursed in full by the Indemnifying Party.
(d) In If the event that indemnification provided for in this Section 13.9 from the indemnity provided in Section 8(a) or Section 8(b) above Indemnifying Party is unavailable to an Indemnified Party hereunder or is insufficient in respect of any Losses referred to hold harmless an indemnified party for any reasonin this Section 13.9, then each applicable the Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, will contribute to the aggregate losses, claims, damages and liabilities amount paid or payable by such Indemnified Party as a result of such Losses (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand Indemnifying Party and the indemnified party on the other Indemnified Party in connection with the statements or omissions which actions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof)Losses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of Moelis Holdings, on the one hand, and each SMBC Unit-Holder, on the other, in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that in no event shall a SMBC Unit-Holder be required by this Section 13.9(d) to contribute an aggregate amount in excess of the dollar amount of proceeds (net of underwriting discounts and commissions and other selling expenses) received by such SMBC Unit-Holder from the sale of Registrable Securities giving rise to such contribution. The relative fault shall of such Indemnifying Party and Indemnified Party will be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the indemnifying party on the one hand by, such Indemnifying Party or the indemnified party on the other Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement action. The amount paid or omission. payable by a party as a result of the Losses referred to above will be deemed to include, subject to the limitations set forth in Section 13.9(c), any reasonable out of pocket legal or other out of pocket fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(e) The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d13.9(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d13.9(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 Section 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 Section 8(d), no Person No person guilty of “fraudulent misrepresentation misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain 13.9(e), a SMBC Unit-Holder shall not be required to contribute, in full force and effectthe aggregate, regardless any amount in excess of the amount by which the net proceeds received by such SMBC Unit-Holder from the sale of the Registrable Securities exceeds the amount of any investigation made damages which such SMBC Unit-Holder has otherwise been required to pay by reason of such untrue or on behalf of any Holder of Registrable Securities alleged untrue statement or the Company omission or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securitiesalleged omission.
(f) To the extent any If indemnification by an indemnifying party is prohibited or limited by lawavailable under this Section 13.9, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 Indemnifying Party will indemnify each Indemnified Party to the fullest extent permitted by law; providedpermissible under applicable law provided in Sections 13.9(a) and 13.9(b) without regard to the relative fault of said Indemnifying Party or Indemnified Party or any other equitable consideration provided for in Section 13.9(d) or 13.9(e). The obligations of Moelis Holdings under this Section 13.9 shall be in addition to any liability that Moelis Holdings may otherwise have to any Indemnified Person.
(g) Notwithstanding anything to the contrary in this Agreement, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) each of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be Indemnified Parties has relied on this Section 13.9, is an express third party beneficiary of this Section 13.9 and is entitled to contribution from any Person involved in enforce the obligations of the applicable Indemnified Parties under this Section 13.9 directly against such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount Indemnified Parties to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationfull extent thereof.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities(including the Dealer Managers, the Affiliatesif applicable, directors, officers, employees, members, managers and agents of each such Holder and each Person Participating Broker-Dealer) and each Person, if any, who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act, to the fullest extent permitted by applicable law, from and Act as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed pursuant to which Registrable Securities were registered under the Securities Act or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 (not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and agrees to reimburse each such indemnified partyexpense, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that of the aggregate amount paid in settlement of any such losslitigation, claimor any investigation or proceeding by any governmental agency or body, damagecommenced or threatened, liability or expense arises (i) out of or is any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided, however, that any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense, as incurred (including the reasonable fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made therein in reliance upon and in conformity with written information furnished to the Company by the Holder or on behalf of any such Holder specifically underwriter expressly for inclusion therein including, without limitation, use in a Registration Statement or any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveProspectus.
(b) Each Holder severally (and severally, but not jointly) , agrees to indemnify and hold harmless the Company and the other selling Holders, and each of its Affiliatestheir respective directors and officers, directors, employees, members, managers and agents and each Person Person, if any, who controls the Company or any other selling Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act, to the fullest extent permitted by applicable law, from and against any and all lossesloss, claimsliability, damages claim, damage and expense described in the indemnity contained in Section 4(a), as incurred, but only with respect to untrue statements or liabilities to which they or any of them may become subject insofar as such lossesomissions, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained statements or omissions, made in a the Shelf Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included therein in any such Registration Statement, or reliance upon and 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any conformity with written information relating with respect to such Holder furnished to the Company by or on behalf of such Holder specifically expressly for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder use in the offering to which such Shelf Registration Statement or Prospectus relatessuch Prospectus.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any action, such indemnified party will, if a claim action or proceeding commenced against it in respect thereof is to of which indemnity may be made against the indemnifying party under this Section 8sought hereunder, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the an indemnifying party (i) will shall not relieve such indemnifying party 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 under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to which it may have otherwise than on account of this indemnity agreement; the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, of such action or proceeding 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party and shall not be liable to such indemnified party under this Section 4 for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationthereof. Notwithstanding the indemnifying party’s rights An indemnified party may participate at its own expense in the prior sentencedefense of such action; provided, however, that counsel to the indemnified party shall have not (except with the right to employ its own counsel (and one local counsel), and consent of the indemnifying party shall bear the reasonable fees, costs and expenses of such separate party) also be 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) . In no event shall the indemnifying party shall not have employed or parties be liable for the fees and expenses of more than one counsel satisfactory (in addition to the any local counsel) separate from their own counsel for all 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, parties in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances. No indemnifying party shall, be liable for without the fees and expenses prior written consent of more than one separate firm of attorneys (in addition to any local counsel) for all the indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 4 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (includingexpenses incurred by such indemnified party, without limitationas incurred, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company on the one hand and the indemnified party Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions expenses, and the relative benefit received by the indemnified party, on the one hand, and the indemnifying party, on the other hand, in respect thereof)connection with the Exchange Offer and the Shelf Registration, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and the Holders 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 omission to state a material fact relates to information supplied by the indemnifying party on the one hand Company or the indemnified party on the other Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)4. The aggregate amount paid or payable of losses, liabilities, claims, damages 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 Section 8(d) 4 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 Section 8(d), no 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. For purposes of this Section 84, each Person Person, if any, who controls any a Holder of Registrable Securities, agent or underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriterand each director of the Company, and each Person Person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
(ai) The Company agrees to To the extent permitted by applicable law, Akorn shall indemnify and hold harmless each Holder of Registrable SecuritiesHolder, and the Affiliatespartners, members, officers, directors, officers, employees, members, managers and agents stockholders of each such Holder Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person Person, if any, who controls any such Holder or underwriter within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorney’s fees and disbursements and reasonable expenses of investigation (collectively, “Losses”), incurred by such Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) Losses arise out of or are based upon any violation of the Securities Actfollowing statements or omissions (collectively, Exchange Act or state securities laws, or upon a “Violation”):
(1) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed the registration statement, including any preliminary Prospectus or in any amendment thereof, or the Disclosure Packagefinal Prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon ; or
(2) the omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementtherein, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will indemnification required by this Section 9(f)(i) shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of Akorn (which consent shall not be unreasonably withheld), nor shall Akorn be liable in any such case for any such Loss to the extent that any such loss, claim, damage, liability or expense it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished in writing to the Company Akorn by or on behalf of a Holder or any underwriter expressly for use in connection with such registration; and provided, further, that any indemnification required by this Section 9(f)(i) shall not apply to the extent that any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, Loss is based on or (ii) arises out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereoffact, or an omission or alleged omission to state a material fact, included in or omitted from any preliminary prospectus if the Disclosure Package final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given by the Holder or any Holder Free Writing Prospectusunderwriter to the Person alleging damage at or prior to the confirmation of sale to such Person; and provided, preliminaryfurther, final or summary Prospectus included in that this indemnity shall not apply to the extent that any such Loss is based on an offer or Transfer of Registrable Securities during any period which Akorn has notified the Holder that such offers and Transfers must cease under the Agreement, including under Section 9(b), Section 9(c)(ii) or Section 9(c)(v).
(ii) To the extent permitted by applicable law, the Holders (severally and not jointly) shall indemnify and hold harmless Akorn, each of the directors of Akorn, each of the officers of Akorn who shall have signed the Resale Registration Statement, each Person, if any, who controls Akorn within the meaning of the Securities Act, and each officer, director, partner, and employee of such controlling Person, against any and all Losses incurred by such Person pursuant to any actual or in any amendment thereof threatened action, suit, proceeding or supplement theretoinvestigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses 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 the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementViolation, in light of the circumstances under which they were made) not misleading, each case to the extent, but only to the extent, extent that any such untrue statement Violation arises out of or alleged untrue statement or omission or alleged omission is contained based upon information furnished in any written information relating to such Holder furnished to the Company writing by or on behalf of a Holder expressly for use in connection with such Holder specifically for inclusion thereinregistration, or upon the Holder’s failure to properly and timely deliver an “official” Prospectus, or upon the Holder’s use of a written or oral prospectus other than the “official” Prospectus; provided, however, that the total amount to be indemnified any indemnification required by such Holder pursuant to this Section 8(b9(f)(ii) shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of the Holders (which consent shall not be limited to unreasonably withheld) and in no event shall the net amount of any indemnity obligation under this Section 9(f)(ii) exceed the gross proceeds (after deducting underwriters’ discounts and commissions) from the applicable offering received by such Holder in the offering to which such Registration Statement or Prospectus relatesHolders.
(ciii) Promptly after receipt by an indemnified party under this Section 8 9(f) of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is to be made against the indemnifying party under this Section 89(f), notify the indemnifying such indemnified party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice shall deliver to the indemnifying party a written notice thereof and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve shall have the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel satisfactory the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, andif prejudicial to its ability to defend such action, except as provided in shall relieve such indemnifying party of any liability to the next sentenceindemnified party under this Section 9(f) to the extent, after notice from but only to the extent, of such prejudice but shall not relieve the indemnifying party of any liability that it may have to such any indemnified party of its election otherwise than pursuant to so assume the defense thereof, the indemnifying party shall not be liable to this Section 9(f). Any such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and one local counsel), and expenses or (ii) the indemnifying party shall bear have failed to promptly assume the reasonable fees, costs and expenses defense of such separate counsel if action, claim or proceeding or (iiii) the use of counsel chosen by the indemnifying party named parties 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 action, claim or proceeding (including any impleaded parties) include both the such indemnified party and the indemnifying party party, and the such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties which that are different from or additional in addition to those available to the indemnifying party; (iii) party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party shall could not have employed counsel satisfactory to the indemnified party to faithfully represent the indemnified party within a reasonable time after notice of the institution of (in which case, if such action; or (iv) indemnified party notifies the indemnifying party shall authorize the indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. No , the indemnifying party shallshall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one action such action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all such indemnified parties. An , unless in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall not be liable under obligated to pay the reasonable fees and expenses of such additional counsel or counsels).
(iv) If the indemnification required by this Section 8 9(f) from the indemnifying party is unavailable to any an indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding hereunder in respect of which indemnification or contribution may be sought hereunder any Losses referred to in this Section 9(f):
(whether or not 1) the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense lieu of any indemnifying such claim or litigation, shall, except with the consent of each indemnified party, consent shall contribute to entry of any judgment the amount paid or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release of payable by such indemnified party from all liability on claims that are the subject matter as a result of such proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions which actions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof)Losses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 9(f)(i), 9(f)(ii) and 9(f)(iii), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding;
(2) the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d11(f)(iv) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d9(f)(iv)(1). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f11(e) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(ev) The provisions obligations of Akorn and the Holders under this Section 8 will remain in full force and effect, regardless 9(f) shall survive the completion of any investigation made by or on behalf offering of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationthe registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Modification, Warrant and Investor Rights Agreement (Akorn Inc)
Indemnification; Contribution. (a) The Company agrees to will indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder holder and each Person who controls affiliate thereof of Common Stock registered pursuant to this Agreement with the Commission, or under any such Holder within the meaning of either the Securities Act Blue Sky Law or the Exchange Act, to the fullest extent permitted by applicable law, from and regulation against any and all losses, claims, damages, liabilities and expenses or liabilities, joint or several, to which they or any of them such holder may become subject under the Act or otherwise, insofar as such losses, claims, damages, or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofpreliminary prospectus, or the Disclosure Packageregistration statement, prospectus, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to will reimburse each such indemnified party, as incurred, holder and affiliate for any legal or other expenses reasonably incurred by them such holder in connection with investigating or defending any such loss, claim, damage, liability action or action (whether claim regardless of the negligence of any such holder or not the indemnified party is a party to any proceeding)affiliate; provided, however, that the Company will shall not be liable in any such case to the extent that any such loss, claim, damage, or liability or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in any preliminary prospectus, registration statement or prospectus, or any such amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically holder expressly for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveuse therein.
(b) Each Holder severally (and not jointly) agrees holder of Common Stock registered pursuant to this Agreement will indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages damages, or liabilities to which they or any of them the Company may become subject subject, under the Act or otherwise, insofar as such losses, claims, damages damages, or liabilities (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any preliminary prospectus, registration statement or in prospectus, or any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.in
(c) Promptly after receipt by an indemnified party under this Section 8 of notice Sections 8(a) or (b) above of the commencement of any action, such indemnified party willshall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8either such subsection, notify the indemnifying party in writing of the commencement thereof; but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above unless and that it may otherwise have to the extent any indemnified party. In case any such action and such failure results in material prejudice to the indemnifying shall be brought against any indemnified party and forfeiture by it shall notify the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than commencement thereof the indemnification obligation provided in paragraph (a) or (b) above. 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 thereof by notice in writing to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after . After notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under either of such subsections for any legal expenses of other counsel or any other expenses expense, in each case subsequently incurred by such indemnified party party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding investigation incurred prior to the assumption by the indemnifying party’s rights , unless such expenses have been specifically authorized in writing by the prior sentenceindemnifying party, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear has failed to assume the reasonable fees, costs defense 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 inemploy counsel, or targets of, the named parties to any such action include both the indemnified party and the indemnifying party party, as appropriate, and the such indemnified party shall have reasonably concluded has been advised by counsel 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release representation of such indemnified party from all liability on claims that are and the subject matter indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them, in each of such proceeding and (ii) does not include any statement as to or any admission which cases the fees of fault, culpability or a failure to act counsel for the indemnified party will be paid by or on behalf of any indemnified the indemnifying party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 8 is unavailable to or insufficient to hold harmless an indemnified party for under Section 8(a) or 8(b) in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, or liabilities (includingor action in respect thereof) referred to therein, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such then each indemnifying party may be subject 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 the relative benefits received by the Company and the holder or holders from this Agreement and from the offering of the shares of Common Stock. 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 indemnifying party on the one hand Company and the indemnified party on the other holders in connection with the statements statement or omissions which that resulted in such losses, claims, damages damages, or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Company or the indemnified party on the other holder and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation determined
(even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purposee) or by any other method of allocation which does not take account The obligations of the equitable considerations referred to above in Company under this Section 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 Section 8(d) 8 shall be deemed in addition to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any such action or claim. Notwithstanding the provisions holder of this Section 8(d), no Person guilty of fraudulent misrepresentation (Warrants within the meaning of Section 11(f) the Act. The obligations of the Securities Act) holders of Common Stock under this Section 8 shall be entitled in addition to contribution from any Person who was not guilty of liability that such fraudulent misrepresentation. For purposes of this Section 8holders may otherwise have and shall extend, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have upon the same rights terms and conditions to contribution as such Holdereach person, agent or underwriterif any, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesAct.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Warrant Agreement (Grand Adventures Tour & Travel Publishing Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless (i) the Holder, (ii) each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each other Person who participates as an underwriter in the offering or sale of such securities, (iii) each person, if any, who controls any such Holder (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) the Holder or underwriter (any of the persons referred to in this clause (iii) being hereinafter referred to as a "controlling person") and (iv) the respective officers, directors, partners, employees, representatives and agents of the Holder or underwriter or any controlling person (any person referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an "indemnified Person"), to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities and expenses to which they liabilities, judgments or any of them may become subject insofar as such lossesexpenses, claims, damages, liabilities and expenses joint or several (or actions or proceedings, whether commenced or threatened, in respect thereof) (collectively, "Claims"), to which such indemnified Person may become subject under either Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise, insofar as such Claims arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities lawsupon, or upon are caused by any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed or in Prospectus (or any amendment thereof, or the Disclosure Packagesupplement thereto), or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in not misleading, or a violation by the case Company of the Disclosure PackageSecurities Act or any state securities law, or any preliminaryrule or regulation promulgated under the Securities Act or any state securities law, final or summary Prospectus or Free Writing Prospectus included in any other law applicable to the Company relating to any such Registration Statementregistration or qualification, in light except insofar as such losses, claims, damages, liabilities, judgments or expenses of the circumstances under which they were made) not misleading, and agrees to reimburse each any such indemnified party, as incurred, for any legal or other expenses reasonably incurred Person; (x) are caused by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission or alleged omission made therein that is based upon information relating to such indemnified Person furnished in reliance upon and in conformity with written information furnished writing to the Company by or on behalf of any of such indemnified Person expressly for use therein; (y) with respect to the preliminary Prospectus, result from the fact that the Holder specifically for inclusion therein includingsold Securities to a person to whom there was not sent or given, without limitationat or prior to the written confirmation of such sale, any notice and questionnairea copy of the Prospectus, as amended or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which supplemented, if the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, shall have previously furnished copies thereof to the fullest extent permitted by applicable law, from Holder in accordance with this Agreement and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing said Prospectus, preliminaryas amended or supplemented, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any would have corrected such untrue statement or alleged untrue statement omission; or omission (z) as a result of the use by an indemnified Person of any Prospectus when, upon receipt of a Blackout Notice or alleged omission is contained in any written information relating to such Holder furnished to a notice from the Company of the existence of any fact of the kind described in Section 2.4(b)(iv), the indemnified Person or the Holder was not permitted to do so. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any indemnified Person and shall survive the transfer of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified securities by such Holder pursuant to this Section 8(b) Holder. In case any action shall be limited to brought or asserted against any of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering indemnified Persons with respect to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of indemnity may be sought against the commencement of any actionCompany, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, Person shall promptly notify the indemnifying party in writing of Company and the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party Company 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 . Such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Person shall have the right to employ its own separate counsel (in any such action and one local counsel)to participate in the defense thereof, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be at the expense of the indemnified Person unless (i) the use employment of such counsel chosen shall have been specifically authorized in writing by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; Company, (ii) the actual Company shall have failed to assume the defense and employ counsel or potential defendants in, or targets of, (iii) the named parties to any such action (including any implied parties) include both the indemnified party Person and the indemnifying party Company and the indemnified party Person shall have reasonably concluded been advised in writing by its counsel 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; Company (iii) in which case the indemnifying party Company shall not have employed counsel satisfactory the right to assume the defense of such action on behalf of the indemnified party to represent Person), it being understood, however, that the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party Company shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallnot, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction or proceedings arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all the indemnified partiesPersons, which firm shall be (x) designated by such indemnified Persons and (y) reasonably satisfactory to the Company. An indemnifying party The Company shall not be liable under this Section 8 for any settlement of any such action or proceeding effected without the Company's prior written consent, which consent shall not be withheld unreasonably, and the Company agrees to indemnify and hold harmless any indemnified party regarding Person from and against any loss, claim, damage, liability, judgment or expense by reason of any settlement of any action effected with the written consent of the Company. The Company shall not, without the prior written consent of each indemnified Person, settle or compromise or consent to the entry of any judgment with respect on or otherwise seek to terminate any pending or threatened action, claim, action, suit litigation or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the any indemnified parties are actual or potential parties to such claim or action) Person is a party thereto), unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partycompromise, consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (i) termination includes an unconditional release of such each indemnified party Person from all liability on claims that are the subject matter arising out of such proceeding action, claim litigation or proceeding.
(b) The Holder agrees to indemnify and hold harmless the Company and its directors, officers and any person controlling (iiwithin the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) does not include any statement the Company, and the respective officers, directors, partners, employees, representatives and agents of each person, to the same extent as the foregoing indemnity from the Company to or any admission each of faultthe indemnified Persons, culpability or a failure but only (i) with respect to act actions based on information relating to the Holder furnished in writing by or on behalf of such Holder expressly for use in any indemnified partyRegistration Statement or Prospectus, and (ii) to the extent of the gross proceeds, if any, received by such Holder from the sale or other disposition of its Restricted Securities covered by such Registration Statement. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling person in respect of which indemnity may be sought against the Holder, such Holder shall have the rights and duties given the Company in Section 2.8(a) (except that the Holder may but shall not be required to assume the defense thereof), and the Company or its directors or officers or such controlling person shall have the rights and duties given to the Holder by Section 2.8(a).
(dc) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 2.8 is unavailable to or insufficient to hold harmless an indemnified party for under Section 2.8(a) or (b) (other than by reason of exceptions provided in those Sections) in respect of any reasonlosses, claims, damages, liabilities, judgments or expenses referred to therein, then each applicable indemnifying party agrees to party, in lieu of indemnifying such indemnified party, shall contribute to the aggregate amount paid or payable by such indemnified party as a result of such losses, claimsclaims damages, damages and liabilities liabilities, judgments or expenses (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holder on the other hand from sale of Restricted Securities or (ii) if such 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 referred to in clause (i) above but also the relative fault of the Company and the Holder in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities, judgments or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand or the indemnified party on the other Holder and the parties’ parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid to a party as a result of the losses, claims, damages, liabilities judgments and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 2.8(a), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and the Holder agree that it would not be just and equitable if contribution pursuant to this Section 8(d2.8(c) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 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 Section 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 claimimmediately preceding paragraph. Notwithstanding the provisions of this Section 8(d)2.8(c) the Holder (and its related indemnified Persons) shall not be required to contribute, no Person in the aggregate, any amount in excess of the amount by which the dollar amount of proceeds received by such Holder upon the sale of the Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation misrepresentations (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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriterThe indemnity, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to contained in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent 2.8 are in addition to any indemnification by an indemnifying party is prohibited or limited by law, liability which the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would person may otherwise be liable under Section 8 have to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled indemnified persons referred to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationabove.
Appears in 1 contract
Sources: Registration Rights Agreement (Commodore Environmental Services Inc /De/)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless the Initial Purchaser, each Holder of Registrable SecuritiesHolder, the Affiliateseach person (a “Controlling Person”), directorsif any, officers, employees, members, managers and agents of each such Holder and each Person who controls the Initial Purchaser or any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, to directors, partners, employees, representatives and agents of the fullest extent permitted by applicable lawInitial Purchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified partythe Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that the Company will shall not be liable required to provide any indemnification pursuant to this Section 6(a) in any such case to the extent that insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of any such the Initial Purchaser or a Holder specifically to the Company expressly for inclusion therein including, without limitationuse in, any notice and questionnaireShelf Registration Statement or any Prospectus; provided further, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This however, that this indemnity agreement will be in addition to any liability which the Company may otherwise havehave to such Indemnified Party.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company and each of Company, its Affiliates, directors, employeesofficers, members, managers employees and agents and each Person any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a “Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damages or liabilities to which they expense, liability, claim or any actions in respect thereof (including the reasonable cost of them investigation) which such Company Indemnified Party may incur or become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in a Registration Statement as originally filed or conformity with information (the “Holder Information”) furnished in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company writing by or on behalf of such Holder specifically to the Company expressly for inclusion thereinuse in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading; and, subject to the limitation set forth in the immediately preceding clause, each Holder 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, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount omission to be indemnified by so notify such Holder pursuant to this Section 8(b) Indemnifying Party shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that liability which it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory may have to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationotherwise. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, fault or culpability or a failure to act by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a6 is unavailable to an Indemnified Party under Section 6(a) or Section 8(b) above is unavailable to 6(b), or insufficient to hold harmless an indemnified party for such Indemnified Party harmless, in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by the Holders or the Initial Purchaser, on the other hand, from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the indemnifying party Company, on the one hand hand, and of the indemnified party Holders or the Initial Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the Holders or the Initial Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand Holders or the indemnified party on the other Initial Purchaser and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 thereof6(d) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or the Company Initial Purchaser or any of person controlling any Holder or the officersInitial Purchaser, or the Company, or the Company’s officers or directors or any person controlling Persons referred to in this Section 8 hereof, the Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company and each Guarantor agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable SecuritiesInitial Purchaser, the Affiliateseach Notice Holder, directorseach person (a “Controlling Person”), officersif any, employees, members, managers and agents of each such Holder and each Person who controls any such Initial Purchaser or Notice Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, to directors, partners, employees, representatives and agents of any Initial Purchaser, the fullest extent permitted by applicable lawNotice Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will and the Guarantors shall not be liable required to provide any indemnification pursuant to this Section 6(a) in any such case to the extent that insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of any such an Initial Purchaser or a Holder specifically to the Company expressly for inclusion therein including, without limitationuse in, any notice and questionnaireShelf Registration Statement or any Prospectus; provided further, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This however, that this indemnity agreement will be in addition to any liability which the Company and the Guarantors may otherwise havehave to such Indemnified Party.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company Company, and each of Guarantor, its Affiliates, directors, employeesofficers, members, managers employees and agents and each Person any person who controls the Company or any Guarantor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a “Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damages or liabilities to which they expense, liability, claim or any actions in respect thereof (including the reasonable cost of them investigation) which such Company Indemnified Party may incur or become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in a Registration Statement as originally filed or conformity with information (the “Holder Information”) furnished in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company writing by or on behalf of such Holder specifically to the Company expressly for inclusion thereinuse in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company and each Guarantor or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount omission to be indemnified by so notify such Holder pursuant to this Section 8(b) Indemnifying Party shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations liability which it may have to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein andsuch Indemnified Party, except 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for has been prejudiced in any legal expenses of other counsel or any other expenses subsequently incurred material respect by such indemnified party in connection with failure through the defense thereof other than reasonable costs forfeiture of investigationsubstantive rights or defenses. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition to any related Proceedings together with reasonably necessary local counsel) for counsel representing all indemnified partiesthe Indemnified Parties). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, which consent shall not be unreasonably withheld or compromise delayed, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. No Indemnifying Party shall, without the prior written consent to the entry of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, fault or culpability or a failure to act by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a6 is unavailable to an Indemnified Party under Section 6(a) or Section 8(b) above is unavailable to 6(b), or insufficient to hold harmless an indemnified party for such Indemnified Party harmless, in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and by the Holders or the Initial Purchasers, on the other hand, from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the indemnifying party Company and the Guarantors, on the one hand hand, and of the indemnified party Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or Guarantors or by the one hand Holders or the indemnified party on the other Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, and each Guarantor, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 thereof6(d) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or the Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the Company or the Guarantors, or the Company’s or any of the officers, Guarantors’ officers or directors or any person controlling Persons referred to in this Section 8 hereof, the Company or any Guarantor and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees and the Guarantors, jointly and severally, agree to indemnify and hold harmless the Initial Purchasers, each Holder of Registrable SecuritiesHolder, the Affiliateseach Participating Broker-Dealer, directors, officers, employees, members, managers and agents of each such Holder and each Person who participates as an underwriter (any such Person being an "Underwriter") and each Person, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense whatsoever, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed (or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, 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 not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and agrees to reimburse each such indemnified partyexpense whatsoever, as incurred, for to the extent of the aggregate amount paid in settlement of any legal litigation, or other expenses any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 4(d) below) any such settlement is effected with the written consent of the Company and the Guarantors; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred by them 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damagedamage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company and the Guarantors by the Initial Purchasers, liability such Holder, such Participating Broker-Dealer or action Underwriter expressly for use in a Registration Statement (whether or not the indemnified party is a party to any proceedingamendment thereto) or any Prospectus (or any amendment or supplement thereto); provided, howeverfurther, that the Company will not be liable to any Initial Purchaser, Holder (in its capacity as Holder), Participating Broker-Dealer or Underwriter (or any case person who controls such party within the meaning of Section 15 of the 1933 Act or Section 20 of the ▇▇▇▇ ▇▇▇) with respect to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary Prospectus to the extent that the Company shall sustain the burden of proving that any such loss, liability, claim, damage or expense resulted from the fact that such Initial Purchaser, Holder (in its capacity as Holder), Participating Broker- Dealer or Underwriter, as the case may be, sold Securities to a Person to whom such Initial Purchaser, Holder (in its capacity as Holder), Participating Broker-Dealer or Underwriter, as the case may be, failed to send or give, at or prior to the written confirmation of the sale of such Securities a copy of the final Prospectus (as amended or supplemented) if the Company has previously furnished copies thereof (sufficiently in advance of the closing of such sale to allow for distribution of the final Prospectus in a timely manner) to such Initial Purchaser, Holder (in its capacity as Holder), Participating Broker-Dealer or Underwriter, as the case may be, and the loss, liability, claim, damage or expense of such Initial Purchaser, Holder (in its capacity as a Holder), Participating Broker-Dealer or Underwriter, as the case may be, resulted solely from an untrue statement or omission or alleged untrue statement or omission of a material fact contained in or omitted from such preliminary Prospectus which was corrected in the final Prospectus.
(b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Company, the Guarantors, the Initial Purchasers, each Underwriter and the other selling Holders, and each of their respective directors and officers, and each Person, if any, who controls the Company, the Guarantors, the Initial Purchasers, any Underwriter or any other selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 4(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto) or any Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically and the Guarantors expressly for inclusion therein including, without limitation, any notice and questionnaire, or use in the Shelf Registration Statement (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as amendment thereto) or such losses, claims, damages Prospectus (or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein); provided, however, that the total amount to be indemnified by no such Holder pursuant to this Section 8(b) shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Registrable Securities pursuant to which such Shelf Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any action, such indemnified party will, if a claim action or proceeding commenced against it in respect thereof is to of which indemnity may be made against the indemnifying party under this Section 8sought hereunder, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the an indemnifying party (i) will shall not relieve such indemnifying party 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 under paragraph (a) or (b) above unless and to which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the extent defense of such action and such failure results in material prejudice action; provided, however, that counsel to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and shall not (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, ) also be counsel to the indemnifying indemnified party), and, except as provided in the next sentence, after notice from . In no event shall the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not or parties be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs fees and expenses of such more than one counsel (in addition to any local counsel) separate from their own 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 for all 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances. No indemnifying party shall, be liable for without the fees and expenses prior written consent of more than one separate firm of attorneys (in addition to any local counsel) for all the indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 4 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If at any time an indemnified party shall have requested an indemnifying party to reimburse the event indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the indemnity nature contemplated by Section 4(a)(ii) 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.
(e) If the indemnification provided for in this Section 8(a) or Section 8(b) above 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (includingexpenses incurred by such indemnified party, without limitationas incurred, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company and the Guarantors on the one hand and the indemnified party Holders and the Initial Purchasers each on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Company and the Guarantors on the one hand and the Holders and the Initial Purchasers each 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 omission to state a material fact relates to information supplied by the indemnifying party on Company and the one hand Guarantors, the Holders or the indemnified party on the other Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company, the Guarantors, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity and the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)4. The aggregate amount paid or payable of losses, liabilities, claims, damages 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 Section 8(d) 4 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 Section 8(d)4, no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Securities sold by it were offered exceeds the amount of any damages which such Initial Purchaser 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. For purposes of this Section 84, each Person Person, if any, who controls any an Initial Purchaser or Holder of Registrable Securities, agent or underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Initial Purchaser or Holder, agent or underwriter, and each Person director of the Company, and each Person, if any, who controls the Company and each Guarantor, as the case may be, within the meaning of either Section 15 of the Securities 1933 Act or the Exchange Act and each officer and director Section 20 of the Company 1934 Act shall have the same rights to contribution as the CompanyCompany and such Guarantor, subject in each as the case may be. The Initial Purchasers' respective obligations to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 4 are several in proportion to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder principal amount of Securities set forth opposite their respective names in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 Schedule A to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was Purchase Agreement and not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationjoint.
Appears in 1 contract
Sources: Registration Rights Agreement (Tri R of Orlando Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesSecurityholder, the its Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder Securityholder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable lawApplicable Law, from and against any and all losses, claims, damages, liabilities liabilities, expenses and expenses actions (“Losses”) to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) Losses arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability Losses or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises Losses arise (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with Selling Holder Information or other written information furnished to the Company by or on behalf of any such Holder Securityholder specifically for inclusion therein including, without limitation, any notice and questionnairetherein, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii4.08(d) hereof. This indemnity agreement clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder IFC Party severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable lawApplicable Law, from and against any and all losses, claims, damages or liabilities Losses to which they or any of them may become subject insofar as such losses, claims, damages or liabilities Losses arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder IFC Party furnished to the Company by or on behalf of such Holder IFC Party specifically for inclusion thereinin the documents referred to in the foregoing indemnity; provided, however, that the total amount to be indemnified by such Holder IFC Party pursuant to this Section 8(b4.11(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and broker’s commissions) received by such Holder IFC Party in the offering to which such Registration Statement Statement, Disclosure Package, Prospectus or Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such IFC Party may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 4.11 of notice of the commencement of any actionaction in respect of a Loss, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 84.11, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (iA) will not relieve it from liability under paragraph subparagraph (ai) or (bii) above unless and to the extent it did not otherwise learn of such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (iiB) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph subparagraph (ai) or (bii) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and but the indemnifying indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel if unless (iA) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with be inappropriate due to a conflict of interestinterest in the reasonable judgment of the indemnified party; (iiB) 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; (iiiC) 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 (ivD) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified partiesparties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 8 4.11 to any indemnified party regarding any settlement 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 is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. 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 or compromise if any pending or threatened 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 or compromise (iA) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding proceeding, (B) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iiC) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a4.11(a), Section 4.11(b) or and Section 8(b4.11(c) above is unavailable to or insufficient to hold harmless an indemnified party for with respect to any reasonLoss referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities Losses (including, without limitation, including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities Losses (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d4.11(d) were determined by pro rata allocation (even if the Holders of Registrable Securities IFC Parties or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d4.11(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities Losses (or actions in respect thereof) referred to above in this Section 8(d4.11(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d4.11(d), no Person guilty of fraud or 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 fraud or fraudulent misrepresentation. For purposes of this Section 84.11(d), each Person who controls any Holder of Registrable Securities, IFC Party or agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, IFC Party or agent or underwriter shall have the same rights to contribution as such Holder, agent IFC Party or underwriteragent, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d4.11(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 4.11 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities IFC Party or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof4.11, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable SecuritiesInitial Purchaser, the Affiliateseach Holder, directorseach person (a “Controlling Person”), officersif any, employees, members, managers and agents of each such Holder and each Person who controls any such Initial Purchaser or Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, to directors, partners, employees, representatives and agents of any Initial Purchaser, the fullest extent permitted by applicable lawHolders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified partythe Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that the Company will shall not be liable required to provide any indemnification pursuant to this Section 6(a) in any such case to the extent that insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of any such an Initial Purchaser or a Holder specifically to the Company expressly for inclusion therein including, without limitationuse in, any notice and questionnaireShelf Registration Statement or any Prospectus; provided further, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This however, that this indemnity agreement will be in addition to any liability which the Company may otherwise havehave to such Indemnified Party.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company and each of Company, its Affiliates, directors, employeesofficers, members, managers employees and agents and each Person any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a “Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damages or liabilities to which they expense, liability, claim or any actions in respect thereof (including the reasonable cost of them investigation) which such Company Indemnified Party may incur or become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in a Registration Statement as originally filed or conformity with information (the “Holder Information”) furnished in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company writing by or on behalf of such Holder specifically to the Company expressly for inclusion thereinuse in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading; and, subject to the limitation set forth in the immediately preceding clause, each Holder 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, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount omission to be indemnified by so notify such Holder pursuant to this Section 8(b) Indemnifying Party shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that liability which it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory may have to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationotherwise. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, fault or culpability or a failure to act by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a6 is unavailable to an Indemnified Party under Section 6(a) or Section 8(b) above is unavailable to 6(b), or insufficient to hold harmless an indemnified party for such Indemnified Party harmless, in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by the Holders or the Initial Purchasers, on the other hand, from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the indemnifying party Company, on the one hand hand, and of the indemnified party Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand Holders or the indemnified party on the other Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 thereof6(d) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or the Company Initial Purchasers or any of person controlling any Holder or Initial Purchaser, or the officersCompany, or the Company’s officers or directors or any person controlling Persons referred to in this Section 8 hereof, the Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Indemnification; Contribution. If any Restricted Shares are included in a registration statement under this Agreement:
(a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from BermudaCo and LuxCo shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, Partner, principal and employee of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Actfollowing statements, Exchange Act omissions or state securities laws, or upon any violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement, including any preliminary prospectus or in any amendment thereof, or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon the ;
(ii) The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading; or
(in the case iii) Any violation or alleged violation by BermudaCo or LuxCo of the Disclosure PackageSecurities Act, the Exchange Act, any applicable state securities law or any preliminaryrule or regulation promulgated under the Securities Act, final the Exchange Act or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding)applicable state securities law; provided, however, that the Company will indemnification required by this Section 4.06(a) shall not be liable apply to amounts paid in any case to the extent that settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of BermudaCo or LuxCo (which consent shall not be unreasonably withheld), nor shall BermudaCo or LuxCo be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished to BermudaCo or LuxCo by the Company by or on behalf of any indemnified party expressly for use in connection with such Holder specifically for inclusion therein including, without limitation, any notice Registration. BermudaCo and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to LuxCo shall also indemnify and hold harmless the Company underwriters and each of its Affiliates, directors, employees, members, managers and agents and each Person person who controls the Company such underwriters (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, ) to the fullest same extent permitted by applicable lawas provided above with respect to the indemnification of the Selling Holders; provided, from and against however, that the indemnity agreement contained in this Section 4.06 shall not apply to any and all losses, claims, damages underwriter or liabilities person who controls any underwriter to which they the extent that any such loss is based on or any of them may become subject insofar as such losses, claims, damages or liabilities arise arises out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact fact, or an omission or alleged omission to state a material fact, contained in a Registration Statement as originally filed or in omitted from any amendment thereofpreliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or in such omission or alleged omission, and a copy of the Disclosure Package final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so.
(b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless each of BermudaCo and LuxCo, each of their respective directors, each of their respective officers who shall have signed the registration statement, each Person, if any, who controls BermudaCo or LuxCo within the meaning of the Securities Act, any Holder Free Writing Prospectusother Selling Holder, preliminary, final or summary Prospectus included in any controlling Person of any such Registration Statementother Selling Holder and each officer, director, Partner, principal and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys' fees and disbursements and expenses of investigation, incurred by such underwriters party pursuant to any actual or threatened action, suit, proceeding or investigation, or in to which any amendment thereof of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or supplement theretoother federal or state laws, or insofar as such losses, claims, damages, liabilities and expenses 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 the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementViolation, in light of the circumstances under which they were made) not misleading, each case to the extent, but extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder expressly for use in connection with such Registration; provided, however, that (x) the indemnification required by this Section 4.06(b) shall not apply to amounts paid in settlement of any such untrue statement loss, claim, damage, liability or alleged untrue statement expense if settlement is effected without the consent of the relevant Selling Holder of BermudaCo Shares in respect of Restricted Shares, which consent shall not be unreasonably withheld, and (y) in no event shall the amount of any indemnity under this Section 4.06(b) exceed the net proceeds from the applicable offering received by such Selling Holder. The Selling Holders shall also indemnify underwriters and each person who controls such underwriters (within the meaning of Section 15 of the Securities Act or omission or alleged omission is contained in any written information relating to such Holder furnished Section 20 of the Exchange Act) to the Company by or on behalf same extent as provided above with respect to the indemnification of such Holder specifically for inclusion thereinBermudaCo and LuxCo; provided, however, that the total amount to be indemnified by such Holder pursuant to indemnity agreement contained in this Section 8(b) 4.06 shall be limited not apply to any underwriter or person who controls any underwriter to the net proceeds (after deducting underwriters’ discounts extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and commissions) received by a copy of the final prospectus has not been sent or given to such Holder in person at or prior to the offering confirmation of sale to which such Registration Statement or Prospectus relatesperson if such underwriter was under an obligation to deliver such final prospectus and failed to do so.
(c) Promptly after receipt by an indemnified party under this Section 8 4.06 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is to be made against the indemnifying party under this Section 84.06, notify the indemnifying such indemnified party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice shall deliver to the indemnifying party a written notice of the commencement thereof and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve shall have the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereof, thereof with counsel mutually satisfactory to the parties. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 4.06 to the extent of such material prejudice, but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 4.06. Any reasonable fees and expenses incurred by the indemnified party (who including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) for which the indemnifying party is liable pursuant to this Section 4.6 shall not, except with the consent of be paid to the indemnified party, be counsel as incurred, within thirty (30) days of written notice thereof to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to . Any such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own separate counsel (in any such action, claim or proceeding and one local counsel)to participate in the defense thereof, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be borne by such indemnified party unless (i) the use of counsel chosen by the indemnifying party has agreed to represent the indemnified party would present pay such counsel with a conflict of interest; fees and expenses or (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 failed to promptly assume the indemnified party to represent the indemnified party within a reasonable time after notice of the institution defense 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, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyproceeding.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Shareholders Agreement (Monday LTD)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesTo the extent permitted by law, the AffiliatesPartnership will indemnify each Holder, each of its officers, directors, officersmembers and partners, employees, members, managers and agents of each such Holder and each Person person controlling such Holder, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, and each underwriter, if any, and each person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actunderwriter, to the fullest extent permitted by applicable lawagainst all claims, from and against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses judgments (or actions actions, proceedings or settlements, if such settlements are effected with the written consent of the Partnership, in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any prospectus, offering circular or in other document (including any amendment thereofrelated registration statement, notification or the Disclosure Packagelike) incident to any such registration, qualification or compliance, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 (in the case of the Disclosure Packagenot misleading, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light violation by the Partnership of the circumstances under which they were made) not misleadingSecurities Act or the Exchange Act or any rule or regulation thereunder applicable to the Partnership, and agrees to will reimburse each such indemnified partyHolder, as incurredeach of its officers, directors, members and partners, and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by them in connection with investigating and defending or defending settling any such claim, loss, claim, damage, liability liability, action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company Partnership will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Partnership by such Holder or underwriter and stated to be specifically for use therein, and provided, further, that the Partnership shall not be liable to the extent that any such loss, claim, damage, liability liability, expense or expense action arises (i) out of such person’s failure to send or is based upon any such give a copy of the final prospectus or supplement to the persons asserting an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished at or prior to the Company by or on behalf written confirmation of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales the sale of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be such person if such statement or omission was corrected in addition to any liability which the Company may otherwise havesuch final prospectus or supplement.
(b) Each To the extent permitted by law, each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, severally (and not jointly) agrees to jointly indemnify and hold harmless the Company and Partnership, each of its Affiliates, directors, employeesofficers and controlling persons, members, managers and agents and each Person underwriter, if any, of the Partnership’s securities covered by such a registration statement, each person who controls the Company Partnership or such underwriter within the meaning of either the Securities Act or the Exchange ActAct or the rules and regulations thereunder, each other Holder and Other Partner (if and to the fullest extent permitted by applicable lawsuch Other Partner has agreed to indemnify the Holders as set forth in this clause (b)) including Registrable Securities and other securities in the securities as to which such registration, from qualification or compliance is being effected, and each of their officers, directors, members and partners, and each person controlling such Holder or Other Partner, against any and all claims, losses, claimsdamages and liabilities (or actions, damages proceedings or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise settlements in respect thereof) arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any such registration statement, prospectus, offering circular or in any amendment thereofother document, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and will reimburse the Partnership and such Holders, Other Partners, directors, officers, members, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, action or proceeding, in each case to the extent, but only to the extent, that any such untrue statement (or alleged untrue statement statement) or omission (or alleged omission omission) is contained made in any such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information relating to such Holder furnished to the Company Partnership by or on behalf of such Holder and stated to be specifically for inclusion use therein; provided, however, that the total amount to be indemnified by obligations of each such Holder pursuant to this Section 8(b) hereunder shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) received by to each such Holder in the offering to which such Registration Statement or Prospectus relatesof securities sold as contemplated herein.
(c) Promptly after receipt by an indemnified Each party entitled to indemnification under this Section 8 of 7 (the “Indemnified Party”) shall give notice of to the commencement party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, such indemnified party will, if a claim in respect thereof is to be made against and shall permit the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, Indemnifying Party to assume the defense thereofof any such claim or any litigation resulting therefrom, with including the employment of counsel reasonably satisfactory to such indemnified party (who Indemnified Party, and shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal payment of all reasonable expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationdefense. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own separate counsel (in any such action or proceeding and one local counsel)to participate in the defense thereof, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be at the expense of such Indemnified Party unless (ia) the use Indemnifying Party has agreed to pay such fees and expenses or (b) the Indemnifying Party fails promptly to assume the defense of such action or proceeding or fails to employ counsel chosen reasonably satisfactory to such Indemnified Party or (c) the named parties to any such action or proceeding (including any impleaded parties) include both such Indemnified Party and Indemnifying Party (or an affiliate of the Indemnifying Party), and such Indemnified Party shall have been advised by the indemnifying party to represent the indemnified party would present such counsel with that there is a conflict of interest; (ii) interest on the actual or potential defendants in, or targets of, any part of counsel employed by the Indemnifying Party to represent such action include Indemnified Party and such counsel reasonably determines that it is inappropriate for such counsel to represent both the indemnified party Indemnifying Party (or such affiliate of the Indemnifying Party) and the indemnifying party and Indemnified Party (in which case, if such Indemnified Party notifies the indemnified party shall have reasonably concluded Indemnifying Party in writing 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 elects to employ separate counsel at the expense of the indemnifying partyIndemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such action or proceeding on behalf of such Indemnified Party). No indemnifying party shallNotwithstanding the foregoing, the Indemnifying Party shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable at any time for the fees and expenses of more than one separate firm of attorneys (together in addition to any each case with appropriate local counsel) for as to all indemnified partiesIndemnified Parties. An indemnifying party The failure of any Indemnified Party to give notice as provided herein shall not be liable relieve the Indemnifying Party of its obligations under this Section 8 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claimAgreement, 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 is consented failure to by notify materially adversely affects the Indemnifying Party’s ability to defend such indemnifying partyaction. No indemnifying partyIndemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partyIndemnified Party, consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (i) includes which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release of such indemnified party from all liability on claims that are the subject matter in respect of such proceeding claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an indemnifying Party may reasonably request in writing and (ii) does not include any statement as to or any admission shall be reasonably required in connection with the defense of fault, culpability or a failure to act by or on behalf of any indemnified partysuch claim and litigation resulting therefrom.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party 7 shall for any reasonreason be unenforceable by an Indemnified Party, although otherwise available in accordance with its terms, then each applicable Indemnifying Party shall, in lieu of indemnifying party agrees to such Indemnified Party, contribute to the aggregate amount paid or payable by such Indemnified Party as a result of the losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) respect to which such indemnifying party may be subject Indemnified Party has claimed indemnification, in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnified Party on the one hand and the indemnified party Indemnifying Party on the other in connection with the statements or omissions 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 fault fault, in the case of an untrue statement, alleged untrue statement, omission or alleged omission, shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Indemnifying Party or the indemnified party on the other Indemnified Party, and the such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, alleged statement, omission or alleged omission. The parties Partnership and each Holder agree that it would not be just and equitable if contribution pursuant hereto were to this Section 8(d) were be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the such equitable considerations referred to above in this Section 8(d)considerations. The amount paid or payable by an indemnified party Indemnified Party as a result of the losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to above in this Section 8(d) herein shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party Indemnified Party in connection with investigating or defending against any such action or claimclaim which is the subject hereof before the Indemnifying Party assumes the defense thereof. Notwithstanding the provisions of this Section 8(d), no Person 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 is not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or Anything to the Company or any of the officers, directors or controlling Persons referred to contrary contained in this Section 8 hereof7 notwithstanding, and will survive the transfer of Registrable Securities.
(f) To the extent no Holder shall be liable for any indemnification or contribution in excess of the net proceeds received by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to it from any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationhas been registered hereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (EverBank Financial Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of If any Registrable Securities, ----------------------------- Securities are included in a registration statement under this Agreement:
7.1. To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from the Company shall indemnify and hold harmless each Selling Holder, its directors, officers, shareholders, employees, investment advisors, agents and Affiliates, either direct or indirect (and each such Affiliate's directors, officers, shareholders, employees, investment advisors and agents) and each other Person, if any, who controls such Selling Holder within the meaning of the Securities Act against any and all losses, claims, damages, liabilities and expenses, including attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, to which they or any of them the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement, including any preliminary prospectus or in any amendment thereof, or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements 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 therein, or necessary to make the statements therein not misleading (in the case of the Disclosure Packagecollectively, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding"Violation"); provided, however, that the indemnification required by this -------- -------
Section 7.1 shall not apply to amounts paid in settlement of any such loss, - ----------- claim, damage, liability or expense if such settlement is effected without the consent of the Company will (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case to the extent that for any such loss, claim, damage, liability or expense to the extent that it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of any the indemnified party expressly for use in connection with such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveregistration.
(b) Each 7.2. To the extent permitted by applicable law, each Selling Holder severally (and not jointly) agrees to shall indemnify and hold harmless the Company and each of Company, its Affiliatesdirectors, directorsofficers, shareholders, employees, membersinvestment advisors, managers and agents and Affiliates, either direct or indirect (and each Person such Affiliate's directors, officers, shareholders, employees, investment advisors and agents) and each other Person, if any, who controls the Company within the meaning of either the Securities Act act, any other Selling Holder and any controlling Person or the Exchange Act, to the fullest extent permitted by applicable law, from and any such other Selling Holder against any and all losses, claims, damages damages, liabilities and expenses, including attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or liabilities threatened action, suit, proceeding or investigation, to which they or any of them the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages or damages, liabilities and expenses arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementViolation, in light of the circumstances under which they were made) not misleading, each case to the extent, but extent (and only to the extent, ) that any such untrue statement or alleged untrue statement or omission or alleged omission is contained Violation occurs in any reliance upon and in conformity with written information relating to furnished by such Selling Holder furnished to the Company by or on behalf of expressly for use in connection with such Holder specifically for inclusion thereinregistration statement; provided, however, that (x) the total amount to be indemnified indemnification -------- ------- required by such Holder pursuant to this Section 8(b7.2 shall not apply to amounts paid in settlement ----------- of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, (y) in no event shall be limited to the amount of any indemnity under this Section 7.2 and of the ----------- contribution obligation of a Selling Holder under Section 7.4 exceed the net ----------- proceeds (after deducting underwriters’ discounts and commissions) from the applicable offering received by such Holder in Selling Holder, and (z) the offering obligation to which such Registration Statement or Prospectus relatesprovide indemnification hereunder shall be several, and not joint and several, among the indemnifying parties.
(c) 7.3. Promptly after receipt by an indemnified party under this Section 8 7 of notice of the commencement of any action, suit, proceeding, - --------- investigation or threat thereof made in writing for which such indemnified party willmay make a claim under this Section 7, such indemnified party shall --------- deliver to the indemnifying party a written notice of the commencement thereof. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action , if a claim in respect thereof is and to be made against the extent materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 8, notify 7 but shall not relieve the indemnifying --------- party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the --------- indemnified party (including any fees and expenses incurred in writing connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty days of the commencement thereof; but the failure so written notice thereof to notify the indemnifying party (i) will not relieve regardless of whether it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any is ultimately determined that an indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be is not 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 indemnification hereunder). Any such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own separate counsel (in any such action, claim or proceeding and one local counsel)to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless(i) the indemnifying party shall bear have failed to promptly assume the reasonable fees, costs and expenses defense 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; action, claim or proceeding or (ii) the actual or potential defendants in, or targets of, named parties to any such action action, claim or proceeding (including any impleaded parties) include both the such indemnified party and the indemnifying party party, and the such indemnified party shall have reasonably concluded been advised by its counsel that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional in addition to those available to the indemnifying party; (iii) party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party shall could not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of (in which case, if such action; or (iv) indemnified party notifies the indemnifying party shall authorize the indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. No , the indemnifying party shallshall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party; it being understood, however, that the indemnifying party shall not, in connection with any one action such action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all such indemnified parties. An , unless the indemnified party shall have been advised by its counsel that a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding such that the counsel could not represent the indemnified party and any other of such indemnified parties, in which event the indemnifying party shall not be liable under this Section 8 obligated to any indemnified party regarding any settlement pay the fees and expenses of such additional counsel 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 is consented to by such indemnifying partycounsels). No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent party shall be liable to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reasonsettlement of any action, then each applicable proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
7.4. If the indemnification required by this Section 7 from the --------- indemnifying party agrees is unavailable to contribute to the aggregate an indemnified party hereunder in respect of any losses, claims, damages and damages, liabilities or expenses referred to in this Section 7: ---------
(includingi) The indemnifying party, without limitationin lieu of indemnifying such indemnified party, legal shall contribute to the amount paid or other payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions which resulted in such lossesloses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expense, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, ----------- ----------- any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 7.4 were determined ----------- by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d7.4(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no -------------- 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.
7.5. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director The obligations of the Company shall have and the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder Selling Holders of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in under this Section 8 hereof, and will 7 shall survive the transfer completion of Registrable Securities.
(f) To the extent --------- any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale offering of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationa registration statement under this Agreement.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of If any Registrable Securities, Securities are included in a registration statement under this Agreement:
7.1. To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from each of the Trust and against any the Corporation, severally and all lossesnot jointly, claimsshall indemnify and hold harmless the Holder, damageseach Person, liabilities and expenses to which they or any of them may become subject insofar as such lossesif any, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation who controls the Holder within the meaning of the Securities Act, Exchange Act or state securities lawsand each officer, or upon any director, partner and employee of the
(i) Any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement, including any preliminary prospectus or in any amendment thereof, or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon the ; or
(ii) The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will indemnification required by this Section 7.1 shall not be liable apply to amounts paid in any case to the extent that settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Trust or the Corporation (which consent shall not be unreasonably withheld), nor shall the Trust or the Corporation be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished to the Company Trust or the Corporation by or on behalf of the indemnified party in writing expressly for use in connection with such registration; and provided, further, that the indemnity agreement contained in this Section 7 shall not apply to the extent that any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, loss is based on or (ii) arises out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereoffact, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 fact, contained in or necessary to make omitted from any preliminary prospectus if the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any prospectus shall correct such untrue statement or alleged untrue statement statement, or such omission or alleged omission is contained in any written information relating omission, and a copy of the final prospectus has not been sent or given to such Holder furnished person at or prior to the Company by confirmation of sale to such person if an underwriter or on behalf of Holder was under an obligation to deliver such Holder specifically for inclusion therein; provided, however, that the total amount final prospectus and failed to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesdo so.
(c) 7.2. To the extent permitted by applicable law, the Holder shall indemnify and hold harmless the Trust, the Corporation, each of the Trustees of the Trust, each of the directors of the Corporation, each of the officers of the Trust or the Corporation who shall have signed the registration statement, each Person, if any, who controls the Trust or the Corporation within the meaning of the Securities Act, against any
7.3. Promptly after receipt by an indemnified party under this Section 8 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is to be made against the indemnifying party under this Section 87, notify the indemnifying such indemnified party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice shall deliver to the indemnifying party a written notice thereof and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve shall have the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereof, thereof with counsel mutually satisfactory to such indemnified party (who shall notthe parties; provided, except with the consent of the indemnified partyhowever, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the that an indemnified party shall have the right to employ retain its own counsel (counsel, with the fees and one local counsel), disbursements and expenses to be paid by the indemnifying party shall bear the reasonable feesparty, costs and expenses if representation of such separate indemnified party by the counsel if (i) the use of counsel chosen retained by the indemnifying party would be inappropriate due 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 differing interests between such action include both the indemnified party and the indemnifying any other party and the indemnified party shall have reasonably concluded that there may be legal defenses available represented by such counsel in such proceeding. The failure to it and/or other indemnified parties which are different from or additional to those available deliver written notice 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 following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the institution indemnified party under this Section 7 to the extent of such action; or (iv) prejudice but shall not relieve the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 liability that it may have to any indemnified party regarding any settlement or compromise or consent otherwise than pursuant 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 this Section 7. Any fees and expenses incurred by the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense of party (including 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding fees and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samepreparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (collectively, “Losses”30) days of written notice thereof to which such the indemnifying party may be subject (regardless of whether it is ultimately determined that an indemnified party is not entitled
7.4. If the indemnification required by this Section 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 7:
(i) The indemnifying 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, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions 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 fault of such indemnifying party and indemnified 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 omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. ,
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 7.4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d7.4(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no 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.
7.5. For purposes of If indemnification is available under this Section 87, the indemnifying parties shall indemnify each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case indemnified party to the applicable terms and conditions of full extent provided in this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited 7 without regard to the net proceeds (after deducting underwriters’ discounts and commissions) received by relative fault of such Holder in the offering to which such Registration Statement indemnifying party or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company indemnified party or any of the officers, directors or controlling Persons other equitable consideration referred to in Section 7.4.
7.6. The obligations of the Trust, the Corporation and the Holder under this Section 8 hereof, and will 7 shall survive the transfer completion of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale offering of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationa registration statement under this Agreement, and otherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Starwood Hotel & Resorts Worldwide Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliatesits officers, directors, officers, employees, members, managers partners, agents and agents of each such Holder employees and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange ActAct (each such party other than each Holder, the “Holder Parties”) , to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities liabilities, expenses and expenses actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofStatement, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnairequestionnaire (including, for the avoidance of doubt, Exhibit A hereto), or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii1(c) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company Company, its affiliates and each of its Affiliatestheir respective officers, directors, employees, members, managers and partners, agents and employees (each Person who controls such party other than the Company, the “Company within the meaning of either the Securities Act or the Exchange Act, Parties”) to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofStatement, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretothereto (collectively, “Disclosure Documents”), 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 the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission (if the losses, claims, damages or liabilities arise in connection with Disclosure Documents first disseminated by the Company) is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b4(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement Statement, Disclosure Package, Prospectus or Free Writing Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 4 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 84, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, and after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationthereof. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own single counsel (and one local counsel), and but the indemnifying indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) unless the use of counsel chosen by the indemnifying party only one firm of attorneys would be inappropriate due 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 4 to any indemnified party regarding any settlement 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 is consented to in writing by such 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 or compromise of any pending or threatened proceeding in respect of which any indemnified party is a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyproceeding.
(d) In the event that the indemnity provided in Section 8(a4(a) or Section 8(b4(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party for with respect to any reasonloss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Preferred Shares and the Common Shares, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d4(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d4(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(d4(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d4(d), no Person guilty of fraud or 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 fraud or fraudulent misrepresentation. For purposes of this Section 84, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter Party shall have the same rights to contribution as such Holder, agent or underwriterthe Holder to which it relates, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company Party shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 8(d4(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 4 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors directors, members, partners, agents and employees or controlling Persons affiliates referred to in this Section 8 hereof4, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Quinpario Acquisition Corp.)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless the Initial Purchaser, each Holder of Registrable SecuritiesHolder, the Affiliateseach Participating Broker-Dealer, directors, officers, employees, members, managers and agents of each such Holder and each Person who participates as an underwriter in connection with a Shelf Registration (any such Person for all purposes of this Section 8 being an “Underwriter”) and each Person, if any, who controls any of such Holder parties within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and Act as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense whatsoever, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed (or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto) pursuant to which Exchange Notes or Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) arising out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any Prospectus (or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, ) 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 in order to make the statements therein (therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extentextent of the aggregate amount paid in settlement of any litigation, but only to or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any untrue statement or omission, or any such alleged statement or omission, in either case of the extent, nature described in clause (i) above; provided that any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in 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 untrue statement or omission, or any alleged untrue statement or omission omission, in either case of the nature described in clause (i) above, to the extent that any such expense is not paid under clause (i) or (ii) above;
(b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Company, the Initial Purchaser, each Underwriter and the other selling Holders, and each of their respective directors and officers, and each Person, if any, who controls the Company, the Initial Purchaser, any Underwriter or any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 4(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged omission is contained untrue statements or omissions, made in the Shelf Registration Statement (or any amendment or supplement thereto) or any Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in conformity with written information relating with respect to such Holder furnished to the Company by or on behalf of such Holder specifically expressly for inclusion thereinuse in the Shelf Registration Statement (or any amendment or supplement thereto) or such Prospectus (or any amendment or supplement thereto); provided, however, that the total amount to be indemnified by no such Holder pursuant to this Section 8(b) shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Registrable Securities pursuant to which such Shelf Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any action, such indemnified party will, if a claim action or proceeding commenced against it in respect thereof is of which indemnity may be sought hereunder, but failure to be made against the so notify an indemnifying party under this Section 8, notify the shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will any event shall not relieve it from any liability under paragraph (a) or (b) above unless and to which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the extent defense of any such action and such failure results in material prejudice action; provided, however, that counsel to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and shall not (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, ) also be counsel to the indemnifying indemnified party), and, except as provided in the next sentence, after notice from . In no event shall the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not or parties be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs fees and expenses of such more than one counsel (in addition to any local counsel) separate from their own 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 for all 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances. No indemnifying party shall, be liable for without the fees and expenses prior written consent of more than one separate firm of attorneys (in addition to any local counsel) for all the indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 4 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If the event that the indemnity provided in indemnification to which a party is entitled under this Section 8(a) or Section 8(b) above 8 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which by such indemnifying indemnified party may be subject in such proportion as is appropriate to reflect the relative fault of the each indemnifying party on the one hand and the Holders and the indemnified party on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative Relative fault 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 omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other party, and the parties’ each such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company, the Holders and the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 8 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)8. The aggregate amount paid or payable of losses, liabilities, claims, damages 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 Section 8(d) 8 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 Section 8(d)8, (i) the Initial Purchaser shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities sold by it pursuant to a registration effected hereunder exceeds the amount of any damages which the Initial Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and (ii) no Holder shall be required to contribute in excess of the amount by which the net proceeds received by such Holder from the sale of Registrable Securities by it pursuant to a registration effected hereunder exceeds the amount of any damages which such 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. For purposes of this Section 8, each Person Person, if any, who controls any the Initial Purchaser, or an Underwriter or Holder of Registrable Securities, agent or underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as the Initial Purchaser, or such Underwriter or Holder, agent or underwriter, and each Person director of the Company, 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 and each officer and director of the Company shall have the same rights to contribution as the Company, subject in . The obligations of each case Holder to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 8 are several and not joint and in the same proportion of all contributions of Holders required hereunder as such Holder’s Registrable Securities sold pursuant to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions is of the total amount of Registrable Securities sold pursuant to the Registration Statement. Any Underwriters’ respective obligations to contribute pursuant to this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved are several in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within proportions specified in the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was relevant underwriting agreement and not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationjoint.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person person who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable lawa “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to liability or claim (including the reasonable cost of investigation) which they or any of them such Holder Indemnified Party may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of incur under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or Prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplement thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified party, except insofar as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claimdamage, damageexpense, liability or action (whether claim arises out of or not is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of any Holder to the indemnified party is a party to any proceeding); Company expressly for use therein, provided, however, that the Company will shall not be liable required to provide any indemnify pursuant to this Section 6(a) in any such case to the extent that insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information pertaining to an Initial Purchaser or Holder furnished to the Company by or on behalf of such Initial Purchaser or Holder to the Company expressly for use in, any Shelf Registration Statement or any Prospectus, including information provided by such Holder in a Notice and Questionnaire; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased such Registrable Securities, to the extent that a prospectus relating to such Registrable Securities was required to be delivered by such Holder specifically for inclusion therein includingunder the Securities Act in connection with such purchase and any such loss, without limitationdamage, expense, liability, claim or action of such Holder 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 Securities to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder; provided further, that this indemnity agreement will not apply to any notice and questionnaireloss, damage, expense, liability or (ii) out of sales claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities made during by a Notice Holder to whom the Company theretofore provided a Suspension Period after notice is given pursuant to Notice in accordance with Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have3(i).
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company and each of Company, its Affiliates, directors, employees, members, managers officers and agents and each Person any person who controls the Company within the meaning of either Section 15 of the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.or
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, and hereby agrees to to, indemnify and hold harmless each the Participating Holder of Registrable Securitiesand its partners, the Affiliatesmembers, directors, officers, employeesemployees and controlling Persons, membersif any, managers and agents in any offering or sale of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange ActParticipating Shares pursuant to a registration statement hereunder, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damagesdamages (including reasonable attorney’s fees) or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable fees of counsel) (collectively, “Claims”) to which they or any of them each such indemnified party may become subject (and the Company will pay to the Participating Holder or other aforementioned person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any Claim as such expenses are incurred), insofar as such lossesClaims (including any amounts paid in settlement effected with the consent of the Company as provided herein), claims, damages, liabilities and expenses (or actions or proceedings in respect thereof) , arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any (i) an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Packageregistration statement, or any preliminarypreliminary or final prospectus contained therein, final or summary Prospectus any amendment or Free Writing Prospectus included supplement thereto, or any document incorporated by reference therein, (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 each case in light of the circumstances in which they were made, not misleading or (iii) any violation or alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law; provided, that the Company shall not be liable to the Participating Holder in any such Registration Statementcase to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or in any preliminary or final prospectus, or amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Participating Holder with respect to such Participating Holder expressly for use therein, by such Participating Holder’s failure to furnish the Company, upon request, with the information with respect to such Participating Holder, or such Participating Holder’s intended method of distribution, that is the subject of the untrue statement or omission, or if such Participating Holder sold securities to the Person alleging such Claims without sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable prospectus (excluding any documents incorporated by reference therein) or of the applicable prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Company had previously furnished copies thereof to the Participating Holder, and such prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement.
(b) The Participating Holder shall, and hereby agrees to, indemnify and hold harmless the Company, its directors, officers, employees and controlling Persons, if any, in any offering or sale of Participating Shares pursuant to a registration statement hereunder, against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or actions or proceedings 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, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, 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 Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse in each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection case only with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party respect to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by the Participating Holder expressly for use in the preparation of such registration statement or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they prospectus or any of them may become subject insofar as amendment or supplement thereto; provided, that in no event shall any indemnity under this Section 2.05 exceed the net proceeds from the offering received by such losses, claims, damages or liabilities arise Participating Holder unless such liability arises out of or are is based upon any violation of the Securities Act, Exchange Act on fraud or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified willful misconduct by such Participating Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received as finally determined by such Holder in the offering to which such Registration Statement or Prospectus relatesa court of competent jurisdiction.
(c) Promptly after receipt by an indemnified party under this Section 8 2.05(a) or Section 2.05(b) of written notice of the commencement of any actionaction or proceeding for which indemnification under Section 2.05(a) or Section 2.05(b) may be requested, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, shall notify the such indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent of such action and or proceeding. In case any such failure results in material prejudice to the indemnifying action or proceeding shall be brought against any indemnified party and forfeiture by the it shall notify an indemnifying party of substantial rights and defenses; and (ii) will notthe commencement thereof, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding ; provided, however, that (i) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding within twenty (20) days after receiving notice from such indemnified party that the indemnified party believes it has failed to do so; (ii) if such indemnified party who is a defendant in any action or proceeding which is also brought against the indemnifying party reasonably shall have concluded that there may be one or more legal defenses available to such indemnified party which are not available to the indemnifying party’s rights ; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in the prior sentenceany such case, the indemnified party shall have the right to employ assume or continue its own defense as set forth above (but with no more than one firm of counsel (and one local counsel), for all indemnified parties) and the indemnifying party shall bear the be liable for any expenses therefor (including, without limitation, any such reasonable counsel’s fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by ). If the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants inis not entitled to, or targets ofelects not to, any such action include both assume the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may defense of a claim, it will not be legal defenses available obligated 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys (in addition counsel for each indemnified party with respect to such claim. The indemnifying party will not be subject to any local counsel) liability for all indemnified parties. An indemnifying party any settlement made without its consent, which shall not be liable under this Section 8 to any unreasonably withheld, conditioned or delayed. No indemnifying party shall, without the prior written consent of the indemnified party regarding any settlement (which shall not be unreasonably withheld, conditioned 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 settlementdelayed), compromise or consent is consented to by such 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 agreement with respect to any action or compromise proceeding in respect of which indemnification is sought under Section 2.05(a) or Section 2.05(b) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent or settlement or compromise (i) is solely for monetary damages and includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter in respect of such proceeding claim or litigation, and (ii) does not include any a statement as to or any admission of fault, culpability or a failure to act act, by or on behalf of any the indemnified party.
(d) In The Participating Holder and the event Company agree that if, for any reason, the indemnity provided in indemnification provisions contemplated by Section 8(a2.05(a) or Section 8(b2.05(b) above is hereof are unavailable to or are insufficient to hold harmless an indemnified party for in respect of any reasonClaims referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection hand, with respect to 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 considerationsapplicable offering of securities. The relative fault of such indemnifying party and 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 omission to state a material fact relates to information supplied by the such indemnifying party on the one hand or the by such indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the first sentence of this Section 2.05(d) is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative fault, but also the relative benefits of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 8(d2.05(d) were to be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 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 Section 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 preceding sentences of this Section 8(d2.05(d). Notwithstanding any of the foregoing, in no event shall any contribution by any Participating Holder under this Section 2.05(d), no when combined with any amounts payable or paid by such Participating Holder under Section 2.05(b), exceed the net proceeds from the offering received by such Participating Holder, unless such liability arises out of or is based on fraud or willful misconduct by such Participating Holder. 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Albany Molecular Research Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable SecuritiesInitial Purchaser, the Affiliateseach Holder, directorseach person (a “Controlling Person”), officersif any, employees, members, managers and agents of each such Holder and each Person who controls any such Initial Purchaser or Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, to directors, partners, employees, representatives and agents of any Initial Purchaser, the fullest extent permitted by applicable lawHolders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified partythe Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that the Company will shall not be liable required to provide any indemnification pursuant to this Section 6(a) in any such case to the extent that insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of an Initial Purchaser or a Holder to the Company expressly for use in, any such Holder specifically for inclusion therein Shelf Registration Statement or any Prospectus, including, without limitation, any notice information provided to the Company by such Holder in a Notice and questionnaireQuestionnaire; provided further, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This however, that this indemnity agreement will be in addition to any liability which the Company may otherwise havehave to such Indemnified Party; provided further, however, that no Initial Purchaser or Holder shall be entitled to this indemnity to the extent, and only to the extent, such loss, damage, expense, liability, claim or action arises out of a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities by such Initial Purchaser or Holder, as the case may be, during a Suspension Period, provided such Initial Purchaser or Holder, as the case may be, received, prior to such disposition, a Suspension Notice with respect to such Suspension Period.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company and each of Company, its Affiliatesdirectors, directorsofficers, employees, members, managers representatives and agents and each Person any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a “Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damages or liabilities to which they expense, liability, claim or any actions in respect thereof (including the reasonable cost of them investigation) which such Company Indemnified Party may incur or become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in, and in a Registration Statement as originally filed or conformity with information (the “Holder Information”) furnished in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company writing by or on behalf of such Holder specifically to the Company expressly for inclusion thereinuse in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information, which material fact was not contained in such Holder Information, and which material fact was either required to be stated in any Shelf Registration Statement or Prospectus, or any amendment or supplement thereto, or necessary to make such Holder Information not misleading; (B) a sale, by such Holder, pursuant to a Shelf Registration Statement, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder with a Suspension Notice with respect to such Suspension Period; or (C) a public sale of Registrable Securities by such Holder without delivery, if required by the Securities Act, of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(h) or Section 2(d)(i)(C); and, subject to the limitation set forth in the immediately preceding clause, each Holder 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, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount omission to be indemnified by so notify such Holder pursuant to this Section 8(b) Indemnifying Party shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve such Indemnifying Party from any liability which it from liability under paragraph (a) may have to such Indemnified Party or (b) above unless and otherwise, except to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred Indemnifying Party is materially prejudiced by such indemnified party in connection with the defense thereof other than reasonable costs of investigationomission. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement or shall not have, prior to the date of such settlement, reimbursed such Indemnified Party for the portion of such requested amount as the Indemnifying Party believes in good faith to be reasonable (provided such Indemnifying Party has theretofore provided written notice to such Indemnified Party that the Indemnifying Party disputes in good faith the reasonableness of the unpaid balance) and (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, fault or culpability or a failure to act by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a6 is unavailable to an Indemnified Party under Section 6(a) or Section 8(b) above is unavailable to 6(b), or insufficient to hold harmless an indemnified party for such Indemnified Party harmless, in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein (other than as a result of the limitations on indemnification specified therein), then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by the Holders or the Initial Purchasers, on the other hand, from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the indemnifying party Company, on the one hand hand, and of the indemnified party Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand Holders or the indemnified party on the other Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 thereof6(d) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or the Company Initial Purchasers or any of person controlling any Holder or Initial Purchaser, or the officersCompany, or the Company’s officers or directors or any person controlling Persons referred to in this Section 8 hereof, the Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are ------------------------------ included in a registration statement under this Agreement:
(a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, and employee of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may become subject under the Securities Act, the Exchange Act or any other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Actfollowing statements, Exchange Act omissions or state securities laws, or upon any violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement, including any preliminary prospectus or in any amendment thereof, or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon the ;
(ii) The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading; or
(in iii) Any violation or alleged violation by the case Company of the Disclosure PackageSecurities Act, the Exchange Act, any applicable state securities law or any preliminaryrule or regulation promulgated under the Securities Act, final the Exchange Act or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding)applicable state securities law; provided, however, that the Company will indemnification -------- ------- required by this Section 6(a) shall not be liable apply to amounts paid in any case to the extent that settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent (and only to the extent) that it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity -------- ------- agreement contained in this Section 6 shall not apply to any underwriter to the extent that any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, loss is based on or (ii) arises out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact fact, or an omission or alleged omission to state a material fact, contained in a Registration Statement as originally filed or in omitted from any amendment thereofpreliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the Disclosure Package distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
(b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or any Holder Free Writing Prospectusother federal or state laws, preliminaryinsofar as such losses, final or summary Prospectus included in any such Registration Statementclaims, or in any amendment thereof or supplement theretodamages, or liabilities and expenses 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 the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementViolation, in light of the circumstances under which they were made) not misleading, each case to the extent, but extent (and only to the extent, ) that any such untrue statement or alleged untrue statement or omission or alleged omission is contained Violation occurs in any reliance upon and in conformity with written information relating to furnished by such Selling Holder furnished to the Company by or on behalf of expressly for use in connection with such Holder specifically for inclusion thereinregistration; provided, however, that (x) the total amount to be indemnified indemnification required -------- ------- by such Holder pursuant to this Section 8(b6(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be limited to unreasonably withheld, and (y) in no event shall the net amount of any indemnity under this Section 6(b) exceed the gross proceeds (after deducting underwriters’ discounts and commissions) from the applicable offering received by such Holder in the offering to which such Registration Statement or Prospectus relatesSelling Holder.
(c) Promptly after receipt by an indemnified party under this Section 8 6 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is to be made against the indemnifying party under this Section 86, notify the indemnifying such indemnified party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice shall deliver to the indemnifying party a written notice of the commencement thereof and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve shall have the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereof, thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall -------- ------- have the right to retain its own counsel at its own expense except as provided below. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and to the extent prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 6. Any fees and expenses incurred by the indemnified party (who including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall not, except with the consent of be paid to the indemnified party, be counsel as incurred, within sixty (60) days of written notice thereof to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such (regardless of whether it is ultimately determined that an indemnified party of its election is not entitled to so assume the defense thereofindemnification hereunder, the indemnifying party but in such event such amounts shall not be liable to refunded). Any such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own separate counsel in any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has agreed to pay such fees and one local counsel), and expenses or (ii) the indemnifying party shall bear have failed to promptly assume the reasonable fees, costs and expenses defense of such separate counsel if action, claim or proceeding or (iiii) the use of counsel chosen by the indemnifying party named parties 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 action, claim or proceeding (including any impleaded parties) include both the such indemnified party and the indemnifying party party, and the such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional in addition to those available to the indemnifying party; (iii) party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party shall could not have employed counsel satisfactory to the indemnified party to faithfully represent the indemnified party within a reasonable time after notice of the institution of (in which case, if such action; or (iv) indemnified party notifies the indemnifying party shall authorize the indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. No , the indemnifying party shallshall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one action such action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all such indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 reasonable judgment or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter a conflict of interest may exist between such indemnified party and any other of such proceeding indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the reasonable fees and (ii) does not include expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any statement as to or any admission of fault, culpability or a failure to act by or on behalf settlement of any indemnified action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
(d) In If the event that indemnification required by this Section 6 from the indemnity provided in Section 8(a) or Section 8(b) above indemnifying party is unavailable to or insufficient to hold harmless an indemnified party for hereunder in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities or expenses referred to in this Section 6:
(includingi) The indemnifying party, without limitationin lieu of indemnifying such indemnified party, legal shall contribute to the amount paid or other payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant -11- equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6(a) and Section 6(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d6(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d6(d)(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of If indemnification is available under this Section 8 will remain 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in full force and effect, regardless this Section 6 without regard to the relative fault of any investigation made by such indemnifying party or on behalf of any Holder of Registrable Securities or the Company indemnified party or any of the officers, directors or controlling Persons other equitable consideration referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities6(d).
(f) To The obligations of the extent any indemnification by an indemnifying party is prohibited or limited by law, Company and the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale Selling Holders of Registrable Securities which Person is guilty under this Section 6 shall survive the completion of fraudulent misrepresentation (within the meaning any offering of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationa registration statement under this Agreement, and otherwise.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to will indemnify and hold harmless each Holder of Registrable Securitiesthe Participating Purchaser, the Affiliates, Accounts and their affiliates and all of their respective directors, officers, members, partners, employees, membersfiduciaries, managers and agents of each such Holder and each Person other person who controls any such Holder persons within the meaning of either the Securities Act or the Exchange ActAct (collectively, to the fullest extent permitted by applicable law, from and "Indemnified Parties") against any and all losses, claims, damagesdamages or liabilities, liabilities joint or several (including without limitation reasonable attorneys' fees and any and all expenses whatsoever incurred in investigating, preparing, compromising or defending against any Third Party Claim, and any and all amounts paid in settlement of any Third Party Claim), to which they or any of them such Indemnified Party may become subject insofar as a result of a Third Party Claim against such Indemnified Party, under the Securities Act or otherwise, including without limitation as such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) as may arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any (i) an untrue statement or alleged untrue statement of a material fact contained in a any Preliminary Prospectus, the Registration Statement as originally filed or in any amendment thereof, or the Disclosure PackageProspectus, or any preliminaryamendment or supplement thereto, final or summary Prospectus (ii) the omission or Free Writing Prospectus included 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 the Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such Third Party 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 StatementStatement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by the Participating Purchaser expressly for use therein (including without limitation the matters identified in Section 3(c)(xi) ("Participating Purchaser Information").
(b) The Participating Purchaser will indemnify and hold harmless the Company, its affiliates, and their respective directors, officers, members, partners, employees, fiduciaries, agents and each other person who controls such persons within the meaning of the Securities Act or the Exchange Act against any losses, claims, damages or liabilities (including without limitation reasonable attorneys' fees and any and all expenses), to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities 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 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse in each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent extent, but only to the extent, that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Participating Purchaser Information and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in investigating or on behalf of defending any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, action or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar claim as such losses, claims, damages or liabilities arise out of or expenses are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesincurred.
(c) Promptly after receipt by an indemnified party under this Section 8 paragraph (a) or (b) above of notice of the commencement of any action, such indemnified party willshall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8such paragraph, notify the indemnifying party in writing of the commencement thereof; but provided, that the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability that it may have under paragraph (a) or (b) above unless and except to the extent 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 person shall not relieve it from any liability which it may have to any indemnified party otherwise than under such paragraph. In case any such action and such failure results in material prejudice to the indemnifying shall be brought against any indemnified party and forfeiture by it shall notify the indemnifying party of substantial rights and defenses; and (ii) will notthe commencement thereof, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such paragraph for any legal expenses of other counsel or any other expenses expenses, in each case subsequently incurred by such indemnified party party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in without the same jurisdiction arising out written consent of the same general circumstances or allegationsindemnified party, be liable for effect the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement or compromise of, or consent to the entry of any judgment with respect to to, any pending or threatened claim, action, suit action or proceeding claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are party is an actual or potential parties party to such claim action or actionclaim) unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter arising out of such proceeding action or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act act, by or on behalf of any indemnified party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 6 is unavailable to or insufficient to hold harmless an indemnified party for under paragraph (a) or (b) above in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and or liabilities (includingor actions in respect thereof) referred to therein, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such then each indemnifying party may be subject 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 the relative fault of benefits received by the indemnifying party Company on the one hand and the Participating Purchaser on the other from the offering of the Rights and Subscription Shares. 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 paragraph (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 Participating Purchaser 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 the Participating Purchaser on the other shall be deemed to be in the same proportion as the total net proceeds from the Rights Offering (before deducting expenses) received by the Company bear to the Commitment Fee received by the Participating Purchaser. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Company on the one hand or the indemnified party Participating Purchaser on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the Participating Purchaser agree that it would not be just and equitable if contribution contributions pursuant to this Section 8(dparagraph (d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(dparagraph (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(dparagraph (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(dparagraph (d), no Person the Participating Purchaser shall not be required to contribute any amount in excess of the amount by which the total price at which the Commitment Securities purchased by it exceed the amount of any damages which such Participating Purchaser 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. For purposes .
(e) The obligations of the Company under this Section 86 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each Person person, if any, who controls any Holder of Registrable Securities, agent or underwriter such Participating Purchaser within the meaning of either the Securities Act or Exchange Act; and the Exchange Act obligations of the Participating Purchaser under this Section 6 shall be in addition to any liability which the Participating Purchaser may otherwise have and each directorshall extend, officer, employee and agent of any such Holder, agent or underwriter shall have upon the same rights terms and conditions, to contribution as such Holdereach officer and director of the Company and to each person, agent or underwriterif any, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesAct.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Indemnification; Contribution. (a) The Company shall, and it hereby agrees to to, indemnify and hold harmless each Holder of Registrable Securities, the AffiliatesParticipating Investor and its officers, directors, employees and controlling Persons, if any, and each underwriter, its partners, officers, employeesdirectors, membersemployees and controlling Persons, managers and agents if any, in any offering or sale of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange ActRegistrable Shares, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, damages or liabilities and expenses to which they or any of them each such indemnified party may become subject subject, insofar as such losses, claims, damagesdamages or liabilities, liabilities and expenses (or actions or proceedings in respect thereof) , including any amounts paid in settlement as provided in this Agreement (collectively, CLAIMS), arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Packageregistration statement, or any preliminary, preliminary or final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus contained therein, or in any amendment thereof or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any 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 in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse each Participating Investor or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by it in connection with investigating or defending any such Claims; PROVIDED, HOWEVER, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Participating Investor or any underwriter expressly for use therein; and PROVIDED, FURTHER, that the Company will not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriter with respect to any preliminary or final prospectus contained therein, or any amendment or supplement thereto, to the extent that any Claim of such underwriter or controlling Person results from the fact that such underwriter sold Registrable Securities to a Person to whom there was not sent or given (to the extent legally required), at or prior to the written confirmation of such sale, a copy of the final prospectus or of the final prospectus as then amended or supplemented, whichever is most recent, if the Company has previously furnished copies thereof to such underwriter.
(b) Each Participating Investor shall, and hereby agrees to (1) indemnify and hold harmless each of the Company, each other Participating Investor and their respective directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Shares, against any Claims to which each such indemnified party may become subject, insofar as such Claims arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon 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 Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse in each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case only to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Participating Investor expressly for use therein, and (2) reimburse the Company for any legal or other out-of-pocket expenses reasonably incurred by the Company in connection with investigating or defending any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesClaim.
(c) Promptly after receipt by an indemnified party under this Section 8 SECTION 6.5(A) or SECTION 6.5(B) of written notice of the commencement of any actionaction or proceeding for which indemnification under SECTION 6.5(A) or SECTION 6.5(B) may be requested, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, shall notify the indemnifying party in writing of the commencement thereof; of such action or proceeding, but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above unless and which it may have to the extent any indemnified party in respect of such action and such failure results in material prejudice to or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure of the indemnified party to give such notice, and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, no event shall such omission relieve the indemnifying party from any obligations other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party other than and it shall notify an indemnifying party of the indemnification obligation provided in paragraph (a) or (b) above. The commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights If there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate under applicable standards of professional conduct in the prior sentence, reasonable judgment of the indemnified party shall have for the right to employ its own same counsel (and one 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) if the indemnifying party shall elects not have employed counsel satisfactory to assume the indemnified party defense of a claim, it will not be obligated 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, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys (counsel for each indemnified party with respect to such claim in addition each jurisdiction for which the indemnified party reasonably determines counsel is necessary. The indemnifying party will not be subject to any local counsel) liability for all indemnified parties. An indemnifying party any settlement made without its consent, which consent shall not be liable under this Section 8 to any indemnified unreasonably withheld. No indemnifying party regarding any settlement or compromise or shall, without the prior written 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 settlementparty, compromise or consent is consented to by such 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 agreement with respect to any action or compromise proceeding in respect of which indemnification is sought under SECTION 6.5(A) or SECTION 6.5(B) (whether or not the indemnified party is an actual or potential party thereto), unless such compromise, consent or settlement or compromise (i) includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter in respect of such proceeding claim or litigation and (ii) does not include subject the indemnified party to any statement as to injunctive relief or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyother equitable remedy.
(d) In Each Participating Investor and the event Company agree that if, for any reason, the indemnity provided in Section 8(aindemnification provisions contemplated by SECTIONS 6.5(A) or Section 8(bSECTION 6.5(B) above is are unavailable to or are insufficient to hold harmless an indemnified party for in respect of any reasonClaims referred to therein (other than as a result of the provisos thereto), then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative fault of and benefits derived by the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)hand, as well as any other relevant equitable considerations. The , or if that allocation is not permitted under applicable law then in such proportion as is appropriate to reflect the relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied benefits received by the indemnifying party on the one hand or the indemnified party on the other Company and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionParticipating Investors. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d)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) Claims referred to above in this Section 8(d) shall be deemed to include (subject to the limitations set forth in SECTION 6.5(C)) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action action, proceeding or claim. Notwithstanding the provisions of this Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities liabilities, expenses and expenses actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii1(f)(ii) hereof. This indemnity agreement clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees Dealer Manager will indemnify, defend (subject to indemnify Section 7.6 of the Dealer Manager Agreement) and hold harmless each Holder of Registrable Securitiesthe Wholesaler, the Affiliatesits affiliates and their respective officers, directors, officers, employeesshareholders, members, managers partners, other equity-holders and agents control persons (collectively, the “Other Indemnified Parties”), from and against any losses, claims (including the reasonable costs of each such Holder investigation and each Person who controls any such Holder within legal fees), damages or liabilities (or actions in respect thereof), to which the meaning of either Wholesaler, its affiliates or their respective Other Indemnified Parties may become subject under the Securities Act or the Exchange Act, to the fullest extent permitted by applicable lawor otherwise, from and against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) arise out of or are based upon upon: (i) any violation inaccuracy in or breach of a representation or warranty contained herein by the Dealer Manager, any breach of a covenant or agreement contained herein of the Securities Act, Exchange Act or state securities lawsDealer Manager, or upon any failure by the Dealer Manager to comply with state or federal securities law applicable to the Offering; (ii) any untrue statement or alleged untrue statement of a material fact contained in a any (A) Registration Statement as originally filed or in any post-effective amendment thereto or any Prospectus or any amendment thereofof or supplement to the Prospectus, (B) Authorized Sales Materials, or (C) blue sky application or other document executed by the Disclosure Package, Company or the Operating Partnership (or on behalf of the Company or the Operating Partnership) specifically for the purpose of qualifying any preliminary, final of or summary Prospectus all the Offered Shares for sale under the securities laws of any jurisdiction or Free Writing Prospectus included in based upon written information furnished by the Dealer Manager under the securities laws thereof (any such Registration Statementapplication, document or in any amendment thereof or supplement theretoinformation being hereinafter called a “Blue Sky Application”), or arise out of or are but only to the extent based upon written information furnished by the Dealer Manager; or (iii) any omission or alleged omission of the Dealer Manager to state therein a material fact required to be stated therein in any Registration Statement or any post-effective amendment thereof or in any Prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein (therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that that the Company will not be liable indemnity provided for in any clauses (ii) and (iii) above strictly is limited in each case to the extent and only to the extent, that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in any Registration Statement or any post-effective amendment thereof or in any Prospectus or any amendment thereof or supplement thereto, in reliance upon and in conformity with written information relating to the Dealer Manager that was furnished to the Company by or on behalf the Dealer Manager expressly for use in the preparation of any Registration Statement or any post-effective amendment thereof or any Prospectus or any amendment thereof or supplement thereto. The Dealer Manager will reimburse the Wholesaler and its Other Indemnified Parties for any legal or other expenses reasonably incurred by such Holder specifically for inclusion therein includingWholesaler, without limitationits affiliates and their respective Other Indemnified Parties in connection with investigating or defending such loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which the Dealer Manager otherwise may have.
(b) Each of the Company and the Operating Partnership, jointly and severally, will indemnify, defend (subject to Section 7.6 of the Dealer Manager Agreement) and hold harmless the Wholesaler, its affiliates and their respective Other Indemnified Parties, from and against from and against any losses, claims (including the reasonable costs of investigation and legal fees), damages or liabilities (or actions in respect thereof), to which the Wholesaler, its affiliates or any of their respective Other Indemnified Parties may become subject under the Securities Act or 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 inaccuracy in or breach of a representation or warranty contained herein by the Company or the Operating Partnership, any notice and questionnairebreach of a covenant or agreement contained herein of the Company or the Operating Partnership, or any failure by the Company or the Operating Partnership to comply with state or federal securities laws applicable to the Offering; (ii) any untrue statement or alleged untrue statement of a material fact contained in any (A) Registration Statement or any post-effective amendment thereto or any Prospectus or any amendment or supplement to the Prospectus, (B) Authorized Sales Materials, or (iiC) Blue Sky Application but only to the extent based on information provided by the Company or the Operating Partnership; or (iii) any omission or alleged omission to state a material fact required to be stated in any Registration Statement or any post-effective amendment thereof or in any Prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company or the Operating Partnership will not be liable in any such case to the extent, but only 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 or alleged untrue statement or omission or alleged omission that was made in any Registration Statement or any post-effective amendment thereof or in any Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with written information relating to the Wholesaler or the Dealer Manager that was furnished by the Wholesaler or the Dealer Manager expressly for use in the preparation of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereofthe Registration Statement or any post-effective amendment thereof or the Prospectus or any amendment thereof or supplement thereto. The Company and the Operating Partnership will reimburse the Wholesaler, its affiliates and their respective Other Indemnified Parties for any legal or other expenses reasonably incurred by such Wholesaler and its Other Indemnified Parties in connection with investigating or defending such loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which the Company or the Operating Partnership otherwise may otherwise have.
(bc) Each Holder severally (and not jointly) agrees to indemnify The Wholesaler will indemnify, defend and hold harmless the Company Dealer Manager, the Company, the Operating Partnership and each their respective Other Indemnified Parties, from and against any losses, claims (including the reasonable costs of its Affiliatesinvestigation and legal fees), directorsdamages or liabilities (or actions in respect thereof), employeesto which the Dealer Manager, membersthe Company, managers the Operating Partnership and agents and each Person who controls the Company within the meaning any of either their respective Other Indemnified Parties may become subject under the Securities Act or the Exchange Act, to the fullest extent permitted by applicable lawor otherwise, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claimsclaims (including the reasonable costs of investigation and legal fees), damages or liabilities (or actions in respect thereof) arise out of or are based upon upon: (i) any violation inaccuracy in or breach of a representation or warranty contained herein by the Wholesaler, any breach of a covenant or agreement contained herein of the Securities ActWholesaler, Exchange Act or any failure by the Wholesaler to comply with state or federal securities laws, upon laws applicable to the Offering; (ii) any untrue statement or any alleged untrue statement of a material fact contained in a any Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final post-effective amendment thereof or summary any Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, ; or arise out of or are based upon the (iii) any omission or alleged omission to state therein a material fact required to be stated therein in any Registration Statement or any post-effective amendment thereof or any Prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein (therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, provided, however, that the indemnity provided for in clauses (ii) and (iii) above strictly is limited in each case to the extent, but and only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any Registration Statement or any post-effective amendment thereof or in any Prospectus or any amendment thereof or supplement thereto, in reliance upon and in conformity with written information relating to such Holder the Wholesaler that was furnished to the Company by the Wholesaler expressly for use in the preparation of any Registration Statement or on behalf of any post-effective amendment thereof or any Prospectus or any amendment thereof or supplement thereto. The Wholesaler will reimburse the Dealer Manager, the Company, the Operating Partnership and their respective Other Indemnified Parties for legal or other expenses reasonably incurred in connection with investigating or defending such Holder specifically for inclusion therein; providedloss, howeverclaim, that damage, liability or action. This indemnity agreement will be in addition to any liability which the total amount Wholesaler may otherwise have.
(d) Any party which proposes to assert the right to be indemnified by such Holder pursuant to under this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly 9 will, promptly after receipt by of notice of commencement of any action, suit or proceeding against such party in respect of which a claim of a third party (a “Third Party Claim”) is made or is to be made against an indemnified party under this Section 8 of notice 9, notify each indemnifying party of the commencement of any such action, such indemnified party willsuit or proceeding, if enclosing a claim in respect thereof is to be made against the indemnifying party under this Section 8copy of all papers served, notify the indemnifying party in writing of the commencement thereof; but and the failure so to notify the such indemnifying party (i) will not of any such action, suit or proceeding shall relieve it from any liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations which it may have to any indemnified party other under this Section 9 to the extent, and only to the extent, that such failure was prejudicial to the indemnifying party. In no event shall any such failure relieve an indemnifying party of any liability which it may have to an indemnified party otherwise than under this Section 9. In case any such action, suit or proceeding shall be brought against any indemnified party, and such indemnified party shall notify the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying part of the commencement thereof, the indemnifying party shall be entitled to participate therein therein, and, to the extent that if it shall wish, jointly with any other indemnifying party similarly notified, wish 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, except as provided in the next sentence, after . After notice from the indemnifying party to such the indemnified party of its the election of the indemnifying party so to so assume the defense thereof, the indemnifying party shall not be liable to such the indemnified party for any legal expenses or other expenses, other than reasonable costs of other counsel or any other expenses investigation requested by the indemnifying party subsequently incurred by such the indemnified party in connection with the defense thereof other than reasonable costs of investigationthereof. Notwithstanding the indemnifying party’s rights in the prior sentence, the The indemnified party shall have the right to employ its own counsel (and one local counsel)in any such action, and the indemnifying party shall bear but the reasonable fees, costs fees and expenses of such separate counsel if shall be at the expense of such indemnified party unless (i) the use of employment by counsel chosen by such indemnified party has been authorized by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; party, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and shall have reasonable concluded that there may be a conflict of interest between 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 in the conduct of the defense of such action (in which are different from or additional to those available to 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 satisfactory to assume the indemnified party to represent the indemnified party within a reasonable time after notice of the institution defense of such action; , suit or (iv) proceeding in each of which cases the indemnifying party reasonable fees and expenses of counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in If the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such indemnifying party. No indemnifying party, in so assume the defense of any Third Party Claim, then the indemnifying party shall keep the indemnified party reasonably apprised of the status thereof and shall furnish the indemnified party with such claim documents and information filed or litigation, shall, except delivered in connection with the consent of each indemnified partyThird Party Claim. Notwithstanding the foregoing, the indemnifying party will not consent to the entry of any judgment or enter into any compromise or settlement or compromise with respect to the Third Party Claim without the prior written consent of the indemnified party unless such judgment, compromise or settlement (A) provides for the payment of money by the indemnifying party as sole relief for the claimant, (B) subject to the making of such payment, results in the full and general release of all indemnified parties from all losses, claims, damages, costs, expenses, liabilities (including any investigatory, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted) arising from or relating to the Third Party Claim, and (C) does not require an indemnified party to admit criminal or similar liability or other culpable conduct. If the indemnifying party does not assume the defense of any Third Party Claim, the indemnified party may defend the Third Party Claim, but the indemnified party will not consent to the entry of any judgment or enter into any compromise or settlement with respect to the Third Party Claim without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed.
(e) To the extent Section II.G. of the NASAA REIT Guidelines would apply to this Agreement and as required thereby, the indemnification and agreement to hold harmless provided in this Section 9 is further limited to the extent that no such indemnification by the Dealer Manager, the Company or the Operating Partnership of the Wholesaler, its affiliates and their respective Other Indemnified Parties, shall be permitted under this Agreement for, or arising out of, an alleged violation of federal or state securities laws, unless one or more of the following conditions are met: (i) includes an unconditional release there has been a successful adjudication on the merits of such indemnified party from all liability on claims that are each count involving alleged securities law violations as to the subject matter of such proceeding and particular indemnitee; (ii) does not include any statement such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee; or any admission (iii) a court of faultcompetent jurisdiction approves a settlement of the claims against the particular indemnitee and finds that indemnification of the settlement and the related costs should be made, culpability or a failure to act by or on behalf and the court considering the request for indemnification has been advised of the position of the SEC and of the published position of any indemnified partystate securities regulatory authority in which the securities were offered or sold as to indemnification for violations of securities laws.
(df) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 9 is unavailable to or insufficient to hold harmless an indemnified party for any reasonunder Section 9(a), 9(b) or 9(c), then each applicable indemnifying party agrees to shall contribute to the aggregate amount paid or payable by such indemnified party as a result of the losses, claims, damages and or liabilities (includingor actions in respect thereof) referred to in Section 9(a), without limitation, legal 9(b) or other expenses reasonably incurred in connection with investigating or defending same9(c) (collectively, “Losses”i) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party a particular party, on the one hand hand, and the indemnified party other parties hereto, 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party a particular party, on the one hand or hand, and the indemnified party other parties hereto, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 8(d9(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 claim which is the provisions subject of this Section 8(d9(f), no Person . 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.of
Appears in 1 contract
Indemnification; Contribution. (a) Indemnification by the Company. The Company agrees to indemnify ------------------------------ and hold harmless each Holder of Registrable SecuritiesPerson who participates as an underwriter (any such Person being an "Underwriter"), the Affiliateseach Stockholder and their respective partners, ----------- directors, officers, employees, members, managers officers and agents of each such Holder employees and each Person Person, if any, who controls any such Holder Stockholder or any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and Act against any and all losses, claims, damages, liabilities and expenses to which they or any of them may become subject insofar as such lossesliabilities, claims, damages, liabilities judgments and reasonable expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed (or in any amendment thereofthereto) pursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (in the case of the Disclosure Packageor any amendment or supplement thereto), including all documents incorporated therein by reference, or any preliminary, final the omission or summary Prospectus or Free Writing Prospectus included alleged omission therefrom of a material fact necessary in any such Registration Statementorder to make the statements therein, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that this indemnity agreement does not apply to any -------- ------- Stockholder or any Underwriter or their respective partners, directors, officers and employees and each Person, if any, who controls any Stockholder or any Underwriter within the Company will not be liable in meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act with respect to any case to the extent that any such loss, liability, claim, damage, liability judgment or expense arises (i) to the extent arising out of or is based upon any such untrue statement or omission or alleged untrue statement or omission or alleged omission (A) made therein in reliance upon and in conformity with written information furnished to the Company by such Stockholder or on behalf of any such Holder specifically Underwriter expressly for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained use in a Registration Statement as originally filed (or in any amendment thereof, or in the Disclosure Package thereto) or any Holder Free Writing Prospectus, preliminary, final Prospectus (or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were madeB) not misleading, to the extent, but only to the extent, that any if such untrue statement or omission or alleged untrue statement or omission was corrected in an amended or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such supplemented Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of and the commencement of any action, such indemnified party will, if a claim in respect Company had furnished copies thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice selling Underwriter or the selling Stockholder prior to the indemnifying party and forfeiture relevant date of sale by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) such Underwriter or (b) above. The indemnifying party shall be entitled to participate therein and, such Stockholder to the extent that it shall wishPerson asserting such loss, jointly with any other indemnifying party similarly notifiedliability, 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, actiondamage, suit judgment or proceeding in respect of which indemnification or contribution may be sought hereunder expense (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyprovided, in the defense case of any such claim or litigationan Underwritten Offering, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 -------- limitation in this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities clause (or actions in respect thereof) referred to above in this Section 8(dB) shall be deemed not apply to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(da Participating Stockholder), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Hilfiger Tommy Corp)
Indemnification; Contribution. (a) The Company and each Guarantor agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable SecuritiesInitial Purchaser, the Affiliateseach Notice Holder, directorseach person (a “Controlling Person”), officersif any, employees, members, managers and agents of each such Holder and each Person who controls any such Initial Purchaser or Notice Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, to directors, partners, employees, representatives and agents of any Initial Purchaser, the fullest extent permitted by applicable lawNotice Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will and the Guarantors shall not be liable required to provide any indemnification pursuant to this Section 6(a) in any such case to the extent that insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of any such an Initial Purchaser or a Holder specifically to the Company expressly for inclusion therein including, without limitationuse in, any notice and questionnaireShelf Registration Statement or any Prospectus; provided further, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This however, that this indemnity agreement will be in addition to any liability which the Company and the Guarantors may otherwise havehave to such Indemnified Party.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company Company, and each of Guarantor, its Affiliates, directors, employeesofficers, members, managers employees and agents and each Person any person who controls the Company or any Guarantor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a “Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damages or liabilities to which they expense, liability, claim or any actions in respect thereof (including the reasonable cost of them investigation) which such Company Indemnified Party may incur or become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in a Registration Statement as originally filed or conformity with information (the “Holder Information”) furnished in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company writing by or on behalf of such Holder specifically to the Company expressly for inclusion thereinuse in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company and each Guarantor or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount omission to be indemnified by so notify such Holder pursuant to this Section 8(b) Indemnifying Party shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations liability which it may have to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein andsuch Indemnified Party, except 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for has been prejudiced in any legal expenses of other counsel or any other expenses subsequently incurred material respect by such indemnified party in connection with failure through the defense thereof other than reasonable costs forfeiture of investigationsubstantive rights or defenses. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition to any related Proceedings together with reasonably necessary local counsel) for counsel representing all indemnified partiesthe Indemnified Parties). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, which consent shall not be unreasonably withheld or compromise delayed, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or liability by reason of such settlement. No Indemnifying Party shall, without the prior written consent to the entry of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, fault or culpability or a failure to act by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a6 is unavailable to an Indemnified Party under Section 6(a) or Section 8(b6(b) above is unavailable to or insufficient to hold such Indemnified Party harmless an indemnified party for in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and by the Holders or the Initial Purchasers, on the other hand, from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the indemnifying party Company and the Guarantors, on the one hand hand, and of the indemnified party Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or Guarantors or by the one hand Holders or the indemnified party on the other Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, and each Guarantor, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 thereof6(d) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or the Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the Company or the Guarantors, or the Company’s or any of the officers, Guarantors’ officers or directors or any person controlling Persons referred to in this Section 8 hereof, the Company or any Guarantor and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees and the Guarantors jointly and severally agree to indemnify and hold harmless the Initial Purchasers, each Holder of Registrable SecuritiesHolder, the Affiliateseach Participating Broker-Dealer, directors, officers, employees, members, managers and agents of each such Holder and each Person who participates as an underwriter (any such Person being an "Underwriter") and each Person, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense whatsoever, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed (or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, 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 not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and agrees to reimburse each such indemnified partyexpense whatsoever, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that of the aggregate amount paid in settlement of any such losslitigation, claimor any investigation or proceeding by any governmental agency or body, damagecommenced or threatened, liability or expense arises (i) out of or is any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 4(d) below) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made therein in reliance upon and in conformity with written information furnished to the Company by the Holder or on behalf of Underwriter expressly for use in a Registration Statement (or any such Holder specifically for inclusion therein including, without limitation, amendment thereto) or any notice and questionnaire, Prospectus (or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveamendment or supplement thereto).
(b) Each Holder severally (and severally, but not jointly) , agrees to indemnify and hold harmless the Company Company, the Guarantors, the Initial Purchasers, each Underwriter and the other selling Holders, and each of its Affiliatestheir respective directors and officers, directors, employees, members, managers and agents and each Person Person, if any, who controls the Company Company, any Guarantor, any Initial Purchaser, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, to the fullest extent permitted by applicable law, from and against any and all lossesloss, claimsliability, damages claim, damage and expense described in the indemnity contained in Section 4(a) hereof, as incurred, but only with respect to untrue statements or liabilities to which they or any of them may become subject insofar as such lossesomissions, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained statements or omissions, made in a the Shelf Registration Statement as originally filed (or in any amendment thereof, or in the Disclosure Package thereto) or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, therein (or in any amendment thereof or supplement thereto, or arise out of or are based ) in reliance upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (and in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any conformity with written information relating with respect to such Holder furnished to the Company by or on behalf of such Holder specifically expressly for inclusion thereinuse in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto); provided, however, that the total amount to be indemnified by no such Holder pursuant to this Section 8(b) shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Registrable Securities pursuant to which such Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any action, such indemnified party will, if a claim action or proceeding commenced against it in respect thereof is to of which indemnity may be made against the indemnifying party under this Section 8sought hereunder, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the an indemnifying party (i) will shall not relieve such indemnifying party 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 under paragraph (a) or (b) above unless and to which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the extent defense of such action and such failure results in material prejudice action; provided, however, that counsel to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and shall not (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, ) also be counsel to the indemnifying indemnified party), and, except as provided in the next sentence, after notice from . In no event shall the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not or parties be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs fees and expenses of such more than one counsel (in addition to any local counsel) separate from their own 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 for all 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances. No indemnifying party shall, be liable for without the fees and expenses prior written consent of more than one separate firm of attorneys (in addition to any local counsel) for all the indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 4 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If at any time an indemnified party shall have requested an indemnifying party to reimburse the event 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 4(a)(ii) 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; provided, however, that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party, prior to the date of such settlement, (1) reimburses such indemnified party in accordance with such request for the amount of such fees and expenses of counsel as the indemnifying party believes in good faith to be reasonable, and (2) provides written notice to the indemnified party that the indemnity indemnifying party disputes in good faith the reasonableness of the unpaid balance of such fees and expenses.
(e) If the indemnification provided for in this Section 8(a) or Section 8(b) above 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (includingexpenses incurred by such indemnified party, without limitationas incurred, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company and the Guarantors on the one hand and the indemnified party Holders and the Initial Purchasers on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Company and the Guarantors on the one hand and the Holders and the Initial Purchasers 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 omission to state a material fact relates to information supplied by the indemnifying party on Company, the one hand Guarantors, the Holders or the indemnified party on the other Initial Purchasers and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company, the Guarantors, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)4. The aggregate amount paid or payable of losses, liabilities, claims, damages 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 Section 8(d) 4 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 Section 8(d)4, no Initial Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Securities sold by it were offered exceeds the amount of any damages which such Initial Purchaser 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 Act1933 ▇▇▇) shall ▇▇all be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 84, each Person Person, if any, who controls any an Initial Purchaser or Holder of Registrable Securities, agent or underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Initial Purchaser or Holder, agent or underwriter, and each Person director of the Company or any Guarantor, and each Person, if any, who controls the Company or any Guarantor within the meaning of either Section 15 of the Securities 1933 Act or the Exchange Act and each officer and director Section 20 of the Company 1934 Act shall have the same rights to contribution as the Company, subject in each case Company and the Guarantors. The Initial Purchasers' respective obligations to the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 4 are several in proportion to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder principal amount of Securities set forth opposite their respective names in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 Schedule A to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was Purchase Agreement and not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationjoint.
Appears in 1 contract
Sources: Registration Rights Agreement (Miller Mechanical Contractors Inc)
Indemnification; Contribution. (a) The In the event any Registrable Shares are included in a registration statement contemplated by this Agreement, the Company shall, and it hereby agrees to to, indemnify and hold harmless harmless, or cause to be indemnified and held harmless, each Holder of Registrable Securities, the AffiliatesAmneal Group Member and its respective officers, directors, officersemployees and controlling Persons, employeesif any, membersin any offering or sale of the Registrable Shares, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, damages or liabilities in respect thereof and expenses (including reasonable fees of counsel) (collectively, “Claims”), to which they or any of them each such indemnified party may become subject subject, insofar as such lossesClaims (including any amounts paid in settlement effected with the consent of the Company as provided herein), claims, damages, liabilities and expenses (or actions or proceedings in respect thereof) , arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Packageregistration statement, or any preliminary, preliminary or final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus contained therein, or in any amendment thereof or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any 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 in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse, upon request, each such Amneal Group Member for any legal or other out-of-pocket expenses reasonably incurred and documented by them in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any Amneal Group Member (or its officers, directors, employee and controlling Persons, if any) in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with the Required Amneal Group Member Information furnished to the Company in writing by such Amneal Group Member or on behalf of such Amneal Group Member by any Representative of the Amneal Group Member, expressly for use therein, that is the subject of the untrue statement or omission.
(b) In the event any Registrable Shares are included in a registration statement contemplated by this Agreement, each Amneal Group Member shall, and hereby agrees to, indemnify and hold harmless the Company and its officers, directors, employees and controlling Persons, if any, in any offering or sale of its Registrable Shares against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or actions or proceedings 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, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon 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 Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and each Amneal Group Member shall, and it hereby agrees to to, reimburse each such indemnified party, as incurred, the Company for any legal or other out-of-pocket expenses reasonably incurred and documented by them the Company in connection with investigating or defending any such lossClaims, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any each case only to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information the Required Amneal Group Member Information furnished to the Company in writing by the Amneal Group Member or on behalf of any such Holder specifically its Representative expressly for inclusion use therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice that is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion thereinomission; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) liability of each Amneal Group Member hereunder shall be limited to an amount equal to the dollar amount of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in Amneal Group Member from the offering sale of Registrable Shares sold by such Amneal Group Member pursuant to which such Registration Statement registration statement or Prospectus relatesprospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of Amneal Group and the commencement of Company agree that if, for any actionreason, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred provisions contemplated by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a5.8(a) or Section 8(b5.8(b) above is are unavailable to or are insufficient to hold harmless an Table of Contents indemnified party for in respect of any reasonClaims referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection hand, with respect to 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 considerationsapplicable offering of securities. The relative fault of such indemnifying party and 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 omission to state a material fact relates to information supplied by the such indemnifying party on the one hand or the by such indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the first sentence of this Section 5.8(c) is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 8(d5.8(c) were to be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 preceding sentences of this Section 8(d5.8(c). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) Claims referred to above in this Section 8(d) shall be deemed to include (subject to the limitations set forth in Section 5.9) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action action, proceeding or claim. Notwithstanding the provisions of this Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) no Amneal Group Member shall be limited liable to contribute any amount in excess of the dollar amount equal to the sum of (i) the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in Amneal Group Member from the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with Shares sold by such sale shall be entitled Amneal Group Member pursuant to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and registration statement or prospectus, minus (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received amounts paid or payable by such seller from the sale of such Registrable Securities Amneal Group Member pursuant to such Shelf RegistrationSection 5.8(b) (except in the case of fraud or willful misconduct).
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, and its directors, officers, employees, members, managers representatives and agents of each such Holder and each Person person, if any, who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable lawa "Holder Indemnified Party"), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to liability or claim (including the reasonable cost of investigation) which they or any of them such Holder Indemnified Party may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of incur under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or Prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplement thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified party, except insofar as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information required to be included in any Shelf Registration Statement or the related Prospectus pursuant the Securities Act furnished in writing by or on behalf of any Holder to the Company; provided, however, that as to any preliminary prospectus, this indemnity agreement shall not inure to the benefit of any Holder Indemnified Party on account of any loss, claim, damage, liability or action (whether or not arising from the indemnified party is a party sale of the Registrable Securities sold pursuant to the Shelf Registration Statement to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any person by such loss, claim, damage, liability or expense arises Holder Indemnified Party if (i) out that Holder Indemnified Party failed to send or give a copy of the Prospectus, as the same may be amended or is based upon any supplemented, to that person within the time required by the Securities Act (other than as a result of a failure by the Company to timely deliver copies of the Prospectus to such Holder Indemnified Party) and (ii) the untrue statement or alleged untrue statement of a material fact or omission or alleged omission made therein to state a material fact in reliance upon and such preliminary prospectus was corrected in conformity with written information furnished to the Company by Prospectus or on behalf of any such Holder specifically for inclusion therein includinga supplement or amendment thereto, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which as the Company case may otherwise havebe.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company Company, and each of its Affiliatesdirectors, directorsofficers, employees, members, managers representatives and agents and each Person person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a "Company Indemnified Party") from and against any and all lossesloss, claimsdamage, damages expense, liability or liabilities to claim (including the reasonable cost of investigation) which they or any of them such Company Indemnified Party may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of incur under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed information furnished in writing by or in any amendment thereof, or in on behalf of such Holder to the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus Company required to be included in any such Shelf Registration StatementStatement or the related Prospectus pursuant the Securities Act, or in any amendment thereof or supplement thereto, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, to the extent, but only to the extent, that any in connection with such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion thereininformation; provided, however, that the total amount to be indemnified by no such Holder pursuant to this Section 8(b) shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Registrable Securities pursuant to which such Shelf Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of If any action, such indemnified party willsuit or proceeding (each, if a claim "Proceeding") is brought against any person in respect thereof is of which indemnity may be sought pursuant to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph either subsection (a) or (b) above unless of this Section 6, such person (the "Indemnified Party") shall promptly notify the person against whom such indemnity may be sought (the "Indemnifying Party") in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that failure to so notify the Indemnifying Party shall not relieve such Indemnifying Party from any liability hereunder to the extent such action it is not materially prejudiced as a result thereof and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, event shall not relieve the indemnifying party it from any obligations to any indemnified party other liability which it may otherwise have than the indemnification obligation provided in paragraph (a) or (b) aboveon account of this indemnity agreement. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel), and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if shall be at the expense of such Indemnified Party unless (i) the use of counsel chosen by Indemnifying Party and the indemnifying party Indemnified Party shall have mutually agreed to represent the indemnified party would present such counsel with a conflict of interest; contrary, (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 Indemnifying Party has failed within a reasonable time after receipt of notice to assume defense of a Proceeding to retain counsel reasonably satisfactory to the institution of such action; Indemnified Party or (iviii) the indemnifying party named parties in any such Proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, the Indemnifying Party proposes to have the same counsel represent it 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 the Indemnifying Party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallnot, in connection with any one action or separate but substantially similar Proceeding or related actions Proceeding in the same jurisdiction arising out of the same general circumstances or allegationsjurisdiction, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified partiesIndemnified Parties, and that all such fees and expenses actually incurred shall be promptly reimbursed upon delivery to the Indemnifying Party of reasonable documentation therefor setting forth such expenses in reasonable detail. An 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 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 the Indemnifying Party to reimburse the Indemnified Party as contemplated by this paragraph, the Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its consent if (i) such settlement is entered into more than 60 Business Days after receipt by the Indemnifying Party of the aforesaid request, (ii) such indemnifying party shall not be liable under this Section 8 have reimbursed the Indemnified Party in accordance with such request prior to any indemnified party regarding the date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding 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 any Indemnified Party is consented to by such indemnifying party. No indemnifying a 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyProceeding.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities or insufficient claims referred to hold harmless an indemnified party for any reasontherein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and expenses, liabilities or claims (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holders on the other hand from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities or claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand or the indemnified party on the other Holders and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)subsection (d) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no Person 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders' respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or any person controlling any Holder, or the Company Company, or the Company's officers or directors or any of person controlling the officers, directors or controlling Persons referred to in this Section 8 hereof, Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (Interstate Bakeries Corp/De/)
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person person who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable lawa "HOLDER INDEMNIFIED PARTY"), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to liability or claim (including the reasonable cost of investigation) which they or any of them such Holder Indemnified Party may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of incur under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or Prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplement thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, and agrees to reimburse each such indemnified party, except insofar as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claimdamage, damageexpense, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense claim arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of any such Holder specifically to the Company expressly for inclusion therein use therein, including, without limitation, any notice all information, to the extent provided by such Holder, regarding such Holder and questionnaire, or (ii) out of sales of Registrable Securities made during its affiliates included in a Suspension Period after notice is given pursuant Notice and Questionnaire provided by such Holder to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise haveCompany.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company Company, its directors and each of its Affiliates, directors, employees, members, managers officers and agents and each Person any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a "COMPANY INDEMNIFIED PARTY") from and against any and all lossesloss, claimsdamage, damages expense, liability or liabilities to claim (including the reasonable cost of investigation) which they or any of them such Company Indemnified Party may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of incur under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement as originally filed or Prospectus or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, supplement thereto or in any amendment thereof or supplement theretopreliminary prospectus, including, without limitation, all information, to the extent provided by such Holder, regarding such Holder and its affiliates included in a Notice and Questionnaire provided by such Holder to the Company, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading, to in connection with such information. In no event shall the extent, but only to liability of any selling Holder of Registrable Securities hereunder be greater in amount than the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to dollar amount of the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in upon the offering sale of the Registrable Securities pursuant to which such the Shelf Registration Statement or Prospectus relatesgiving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of If any action, such indemnified party willsuit or proceeding (each, if a claim "PROCEEDING") is brought against any person in respect thereof is of which indemnity may be sought pursuant to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph either subsection (a) or (b) above unless of this Section 6, such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing of the institution of such Proceeding and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party 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 Proceeding; PROVIDED, with counsel satisfactory HOWEVER, that the omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationotherwise. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within 30 days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 60 Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30 days' prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, culpability or a failure to act act, by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 6 is unavailable to an Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses, liabilities or insufficient claims referred to hold harmless an indemnified party for any reasontherein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and expenses, liabilities or claims (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the indemnified party Holders on the other hand from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Holders on the other in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities or claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and of the Holders on the other shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand or the indemnified party on the other Holders and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities and claims referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities subsection (or actions in respect thereofd) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders' respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or any person controlling any Holder, or the Company Company, or the Company's officers or directors or any of person controlling the officers, directors or controlling Persons referred to in this Section 8 hereof, Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Sources: Registration Rights Agreement (Ligand Pharmaceuticals Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesHolder, the Affiliateseach Person who participates as an underwriter, directors, officers, employees, members, managers and agents of each if any (any such Holder Person being an “Underwriter”) and each Person Person, if any, who controls any such Holder or Underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and 1934 Act as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense whatsoever, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed (or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto) pursuant to which Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, 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 (in the case of the Disclosure Packagenot misleading, or arising out of any preliminary, final untrue statement or summary alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus included (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in any such Registration Statementorder to make the statements therein, in the light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and agrees to reimburse each such indemnified partyexpense whatsoever, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that of the aggregate amount paid in settlement of any such losslitigation, claimor any investigation or proceeding by any governmental agency or body, damagecommenced or threatened, liability or expense arises (i) out of or is any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 4(d) below) any such settlement is effected with the written consent of the indemnifying party; and
(iii) against any and all expense whatsoever, as incurred (including the reasonable and documented fees and disbursements of counsel chosen by any indemnified party), reasonably incurred and documented in 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of (A) any untrue statement or omission or alleged untrue statement or omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Holder or Underwriter, if any, expressly for use in a Shelf Registration Statement (or any amendment thereto), any Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto), (B) use of a Prospectus during a period when use of such Prospectus has been validly suspended pursuant to Section 2.5 hereof, provided that such Holder specifically for inclusion therein includinghas received prior notice of such suspension, without limitation, any notice and questionnaireprovided further that this clause (B) shall continue to apply in the event that such valid suspension continues beyond the relevant suspension period, or (iiC) out failure of sales of Registrable Securities made during such Holder to deliver a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which prospectus, as then amended or supplemented, as required by applicable laws, provided that the Company may otherwise haveshall have delivered to such Holder such Prospectus, as then amended or supplemented, or (D) any loss, liability, claim, damage or expense which, in the case of this clause (D), is finally judicially determined to have resulted from the gross negligence, willful misconduct or bad faith of any such party seeking indemnification.
(b) Each Holder severally (and Holder, severally, but not jointly) , agrees to indemnify and hold harmless the Company Company, each Underwriter, if any, and the other selling Holders, and each of its Affiliatestheir respective directors and officers, directors, employees, members, managers and agents and each Person Person, if any, who controls the Company Company, any Underwriter or any other selling Holder within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act, to the fullest extent permitted by applicable law, from and against any and all lossesloss, claimsliability, damages claim, damage and expense described in the indemnity contained in Section 4(a)(i)-(iii) hereof, as incurred and documented, but only with respect to untrue statements or liabilities to which they or any of them may become subject insofar as such lossesomissions, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained statements or omissions, made in a the Shelf Registration Statement as originally filed (or in any amendment thereof, or in the Disclosure Package thereto) or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, therein (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 (in the case of the Disclosure Package, ) or any preliminary, final or summary Prospectus or Issuer Free Writing Prospectus included in any such Registration Statement, reliance upon and in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any conformity with written information relating with respect to such Holder furnished to the Company by or on behalf of such Holder specifically expressly for inclusion thereinuse in the Shelf Registration Statement (or any amendment thereto) or such Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus; provided, however, that the total amount to be indemnified by no such Holder pursuant to this Section 8(b) shall be limited to liable for any claims hereunder in excess of the amount of net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Registrable Securities pursuant to which such Shelf Registration Statement or Prospectus relatesStatement.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party 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. In case any such action, such claim, suit, investigation or proceeding shall be brought against any indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, and it shall notify the indemnifying party in writing of the commencement thereof; but , the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, and to assume the defense thereof; provided, with counsel satisfactory to such indemnified party (who shall nothowever, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided that in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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, event that any such action include action, claim, suit, investigation or proceeding includes both the an indemnified party and the indemnifying party party, and the such indemnified party shall have reasonably concluded concludes that there may be legal defenses available to it and/or or other indemnified parties which that are different from or additional in addition to those available to the indemnifying party; (iii) , or if the indemnifying party shall fails to assume the defense of the action, claim, suit, investigation or proceeding, in either case in a timely manner, then such indemnified party may employ separate counsel to represent or defend it in any such action, claim, suit, investigation or proceeding and the indemnifying party will pay the reasonable fees and disbursements of such counsel; provided, further, that the indemnifying party will not have employed be required to pay the fees and disbursements of more than one counsel satisfactory to for all indemnified parties (and one separate local counsel). In any action, claim, suit, investigation or proceeding the defense of which the indemnifying party assumes, the indemnified party will have the right to represent the indemnified party within a reasonable time after notice of the institution of participate in such action; or (iv) the indemnifying party shall authorize the indemnified party litigation and to employ separate retain its own counsel at the expense of the indemnifying such indemnified party’s own expense. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in shall (i) without the same jurisdiction arising out prior written consent of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys indemnified parties (in addition to any local counsel) for all indemnified parties. An indemnifying party which consent shall not be liable under this Section 8 to any indemnified party regarding any settlement unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 4 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (iA) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (iiB) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified partyparty or (ii) be liable for any settlement of any such action effected without its prior written consent (which consent shall not be unreasonably withheld).
(d) In Notwithstanding clause (ii) of Section 4(c), if at any time an indemnified party shall have requested an indemnifying party to reimburse the event that indemnified party for fees and expenses of counsel, such indemnifying party agrees that, subject to the indemnity proviso in the last paragraph of Section 4.1(a), it shall be liable for any settlement of the nature contemplated by Section 4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 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.
(e) If the indemnification provided for in this Section 8(a) or Section 8(b) above 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (includingexpenses incurred by such indemnified party, without limitationas incurred, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party Company on the one hand and the indemnified party Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and the Holders 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 omission to state a material fact relates to information supplied by the indemnifying party on Company, or by the one hand or the indemnified party on the other Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)4. The aggregate amount paid or payable of losses, liabilities, claims, damages and expenses incurred and documented 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 Section 8(d) 4 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 Section 8(d)4, no Purchaser shall be required to contribute any amount in excess of the amount by which the total price at which the Securities sold by it were offered exceeds the amount of any damages which such Purchaser 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. For purposes of this Section 84, each Person Person, if any, who controls any Purchaser or any Holder of Registrable Securities, agent or underwriter within the meaning of either Section 15 of the Securities 1933 Act or Section 20 of the Exchange 1934 Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Purchaser or the Holder, agent or underwriter, and each Person director of the Company, and each Person, if any, who controls the Company within the meaning of either Section 15 of the Securities 1933 Act or the Exchange Act and each officer and director Section 20 of the Company 1934 Act shall have the same rights to contribution as the Company. The obligations of the Company, subject in each case to Purchaser and the applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder Holders pursuant to this Section 8(d) 4 shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect addition to any amounts for which it would liability that such party may otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationhave.
Appears in 1 contract
Sources: Registration Rights Agreement (Iconix Brand Group, Inc.)
Indemnification; Contribution. (a) The Company agrees to will indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and Exchanging Dealer against any and all losses, claims, damagesdamages or liabilities, liabilities and expenses joint or several, to which they such Holder or any of them Exchanging Dealer may become subject subject, under the Act or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any an untrue statement or alleged untrue statement of a material fact contained in a any preliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement Statement, the Prospectus as originally filed amended or in supplemented and any amendment thereof, other prospectus relating to the Offered Debt Securities or the Disclosure PackageExchange Debt Securities, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to will reimburse each such indemnified party, as incurred, Holder and Exchanging Dealer for any legal or other expenses reasonably incurred by them such Holder or Exchanging Dealer in connection with investigating or defending any such loss, action or claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will shall not be liable in any such case to the extent that any such loss, claim, damage, damage or liability or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in any preliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by any Holder or on behalf of Exchanging Dealer expressly for inclusion in the Prospectus; provided further, that if any preliminary Prospectus, any preliminary Prospectus supplement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, contained any alleged untrue statement or allegedly omitted to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and such statement or omission shall have been corrected in a revised preliminary Prospectus, any preliminary Prospectus supplement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, the Company shall not be liable to any Holder or Exchanging Dealer under this subsection (a) with respect to such alleged untrue statement or alleged omission to the extent that any such loss, claim, damage or liability of such Holder specifically for inclusion therein includingor Exchanging Dealer results from the fact that such Holder or Exchanging Dealer sold Offered Debt Securities or Exchange Debt Securities to a person to whom there was not sent or given, without limitationat or prior to the written confirmation of such sale, a copy of a revised preliminary Prospectus (excluding documents incorporated by reference), preliminary Prospectus supplement (excluding documents incorporated by reference), the Prospectus (excluding documents incorporated by reference), the Prospectus as amended or supplemented (excluding documents incorporated by reference), any notice other amended prospectus relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement thereto relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference), as the case may be, containing a correction of such alleged misstatement or omission, if the Company has made available copies thereof to such Holder or Exchanging Dealer prior to the confirmation of such sale; and questionnaireprovided, further, that the Company shall not be liable to any Holder or Exchanging Dealer under this subsection (a) to the extent that any such loss, claim, damage or liability of such Holder or Exchanging Dealer results from the use by such Holder or Exchanging Dealer of the Prospectus as amended or supplemented (excluding documents incorporated by reference) or the Prospectus as amended or supplemented as it may be further amended or supplemented (excluding documents incorporated by reference), as the case may be (i) otherwise than in connection with an offer or sale of the Offered Debt Securities or the Exchange Debt Securities, or (ii) out at any time nine months or more after the time of sales issue of Registrable Securities made during a Suspension Period after notice is given the Prospectus as amended or supplemented unless the Company has prior to such use amended or supplemented the Prospectus as amended or supplemented to comply with Section 10(a)(3) of the Act if required pursuant to Section 2(e)(ii5(c) hereofhereof and such Holder or Exchanging Dealer uses the Prospectus as amended or supplemented as so further amended or supplemented. This Each Holder and Exchanging Dealer acknowledges that the indemnity agreement will be in addition this subsection (a) does not extend to any liability which such Holder or Exchanging Dealer might have under Section 5(b) of the Act by reason of the fact that such Holder or Exchanging Dealer sold Offered Debt Securities or Exchange Debt 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 (excluding documents incorporated by reference), the Prospectus as amended or supplemented (excluding documents incorporated by reference), any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement relating thereto (excluding documents incorporated by reference), as the case may be, if the Company may otherwise havehas made available copies thereof to such Holder or Exchanging Dealer. For purposes of this subsection (a) the Prospectus (excluding documents incorporated by reference), the Prospectus as amended or supplemented (excluding documents incorporated by reference), any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement relating thereto (excluding documents incorporated by reference), shall not be deemed to have been made available to a Holder or Exchanging Dealer until such Holder or Exchanging Dealer has received the same.
(b) Each Holder severally (and not jointly) agrees to Exchanging Dealer will indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them the Company 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 any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing preliminary Prospectus, preliminaryany preliminary Prospectus supplement, final or summary Prospectus included in any such the Registration Statement, the Prospectus as amended or in supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any preliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any such amendment or supplement, in reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically or Exchanging Dealer expressly for inclusion therein; provided, however, that and will reimburse the total amount to be indemnified Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement action or Prospectus relatesclaim.
(c) Promptly after receipt by an indemnified party under this Section 8 subsection (a) or (b) above of notice of the commencement of any action, such indemnified party willshall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8such subsection, notify the indemnifying party in writing of the commencement thereof, and in the event that such indemnified party shall not so notify the indemnifying party within 30 days following receipt of any such notice by such indemnified party, the indemnifying party shall have no further liability under such subsection to such indemnified party unless such indemnifying party shall have received other notice addressed and delivered in the manner provided in Section 8(c) hereof of the commencement of such action; but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability which it may have to any indemnified party otherwise than under paragraph (a) or (b) above unless and to the extent such subsection. In case any such action and such failure results in material prejudice to the indemnifying shall be brought against any indemnified party and forfeiture by it shall notify the indemnifying party of substantial rights and defenses; and (ii) will notthe commencement thereof as provided above, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so 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 expenses, in each case subsequently incurred by such indemnified party party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding .
(d) If the indemnifying party’s rights indemnification provided for in the prior sentence, the this Section 6 is unavailable to an indemnified party shall have the right to employ its own counsel under subsection (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (ia) 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 (ivb) the indemnifying party shall authorize the indemnified party above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to employ separate counsel at the expense of the indemnifying party. No therein, then each indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out lieu of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such indemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent contribute to entry of any judgment the amount paid or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release of payable by such indemnified party from all liability on claims that are the subject matter as a result of such proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and or liabilities (including, without limitation, legal or other expenses reasonably incurred actions in connection with investigating or defending samerespect thereof) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of benefits received by the indemnifying party Company on the one hand and the Holders and Exchanging Dealers on the other from the offering of the Offered Debt Securities or Exchange Debt Securities to which such loss, claim, damage or liability (or action in respect thereof) 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 Holders and Exchanging Dealers 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 benefits received by the Company shall be deemed to be equal to the sum of (x) the total net proceeds from the Initial Placement (before deducting expenses) as set forth on the cover page of the Final Offering Memorandum and (y) the total amount of additional interest which the Company was not required to pay as a result of registering the securities covered by the Registration Statement which resulted in such losses, claims, damages or liabilities. Benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions as set forth on the cover page of the Final Offering Memorandum, and benefits received by any other Holders or Exchanging Dealers shall be deemed to be equal to the value of receiving Offered Debt Securities or Exchange Debt Securities, as applicable, registered under the Act. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Company on the one hand or the indemnified party such Holders or Exchanging Dealers on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the Holders and Exchanging Dealers agree that it would not be just and equitable if contribution pursuant to this Section 8(dsubsection (d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them and Exchanging Dealers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(dsubsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(dsubsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(dsubsection (d), no Person Holder or Exchanging Dealer shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Offered Debt Securities or Exchange Debt Securities sold pursuant to the Registration Statement exceeds the amount of any damages which such Holder or Exchanging Dealer 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. For purposes The obligations of the Holders and Exchanging Dealers in this subsection (d) to contribute are several and not joint.
(e) The obligations of the Company under this Section 86 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each Person officer and director of a Holder or Exchanging Dealer and to each person, if any, who controls any a Holder of Registrable Securities, agent or underwriter Exchanging Dealer within the meaning of either the Securities Act or the Exchange Act Act; and each directorthe obligations of the Holders and Exchanging Dealers under this Section 6 shall be in addition to any liability that the respective Holders and Exchanging Dealers may otherwise have and shall extend, officer, employee and agent of any such Holder, agent or underwriter shall have upon the same rights terms and conditions, to contribution as such Holdereach officer and director of the Company and to each person, agent or underwriterif any, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesAct.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Indemnification; Contribution. (a) The Incident to any registration statement referred to in this Section 8, the Company agrees to (in such capacity, an "Indemnifying Party") will indemnify and hold harmless each Holder of Registrable Securitiesunderwriter, the AffiliatesInvestor if it offers or sells any such Registrable Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners), and directors, officers, employees, members, managers employees and agents of each such Holder any of them (a "Selling Holder"), and each Person person who controls any such Holder of them within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act") (a "Controlling Person")) (each in such capacity, to the fullest extent permitted by applicable lawan "Indemnified Party"), from and against any and all losses, claims, damages, liabilities expenses and liabilities, joint or several (including any reasonable investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, as the same are incurred, to which they they, or any of them them, may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of under the Securities Act, the Exchange Act or other federal or state securities lawsstatutory law or regulation, at common law or upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereofotherwise, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon on (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement (including any related preliminary or in definitive prospectus, or any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretoto such registration statement or prospectus), or arise out of or are based upon the (ii) any omission or alleged omission to state therein in such document a material fact required to be stated therein in it or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) it not misleading, or (iii) any violation by the Company of the Securities Act, any state securities or "blue sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that (i) the Company shall -------- ------- not be liable in respect of any settlement effected without its consent (which consent shall not be unreasonably withheld) and (ii) the Company will not be liable to the extentextent that such loss, but only to the extentclaim, that any such damage, expense or liability arises from and is based on (i) an untrue statement or omission or alleged untrue statement or omission or alleged omission is contained made in any written reliance on and in conformity with information relating to such Holder furnished in writing to the Company by such underwriter, Selling Holder or on behalf Controlling Person expressly for use in such registration statement, or (ii) such Selling Holder or Controlling Person being subject to an obligation to deliver a definitive prospectus and fails to do so. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder (each such Selling Holder in such capacity, an "Indemnifying Party") will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other selling stockholder (including its partners (including partners of partners and stockholders of such Holder specifically for inclusion therein; providedpartners) and directors, officers, employees and agents of any of them, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each in such capacity, an "Indemnifying Party"), from and against any and all losses, claims, damages, expenses and liabilities, joint or several, to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise to the same extent provided in the immediately preceding sentence. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 8.4(a) exceed the lesser of (i) that proportion of the total amount of such losses, claims, damages or liabilities indemnified against equal to be indemnified the proportion of the total securities sold under such registration statement which is being sold by such Selling Holder pursuant to this Section 8(bor (ii) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Selling Holder in the offering to which from its sale of Registrable Securities under such Registration Statement or Prospectus relatesregistration statement.
(cb) Promptly after receipt If the indemnification provided for in Section 8.4(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party under this Section 8 of notice of the commencement Indemnified Party in respect of any actionlosses, such indemnified party willclaims, if a claim in respect thereof is damages, expenses or liabilities referred to be made against the therein, then each indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not8.4, in any eventlieu of indemnifying such Indemnified Party thereunder, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claims, damages and damages, expenses or liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, the other selling stockholders and the underwriters from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the indemnifying party on Company, the one hand other selling stockholders and the indemnified party on the other underwriters in connection with the statements or omissions which 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, the Selling Holders, the other selling stockholders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Company, the Selling Holders, the other selling stockholders and the underwriting discount received by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Company, the Selling Holders, the other selling stockholders and 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 omission to state State a material fact relates to information supplied by the indemnifying party on Company, the one hand Selling Holders, the other selling stockholders or the indemnified party on the other underwriters and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the Selling Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d8.4(b) were determined by pro rata or per capita allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 8(d). The amount paid or payable by an indemnified party as a result 8.4(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities (or actions in respect thereof) referred indemnified against equal to above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred the proportion of the total Registrable Securities sold under such registration statement which are being sold by such indemnified party in connection with investigating Selling Holder or defending any (ii) the proceeds received by such action or claimSelling Holder from its sale of Registrable Securities under such registration statement. Notwithstanding the provisions of this Section 8(d), no Person No person found 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 found guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(ec) The provisions amount paid by an Indemnifying Party or payable to an Indemnified Party as a result of the losses, claims, damages and liabilities referred to in this Section 8 shall be deemed to 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, payable as the same are incurred. The indemnification and contribution provided for in this Section 8.4 will remain in full force and effect, effect regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company indemnified parties or any officer, director, employee, agent or controlling person of the officers, directors Indemnified Parties.
(d) Promptly after receipt by an Indemnified Party of notice of the commencement of any action or controlling Persons proceeding involving a claim referred to in this Section 8 hereof8.4, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by such Indemnified Party will, if a claim in respect thereof is to be made against an indemnifying party is prohibited or limited by lawIndemnifying Party, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 give written notice to the fullest extent permitted by law; latter of the commencement of such action, provided, however, that: (i) no Person involved that the failure of any -------- ------- Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligation under the preceding subdivisions of this Section 8.4, except to the extent that the Indemnifying Party is actually prejudiced by such failure to give notice. In case any such action is brought against an Indemnified Party, provided the Indemnifying Party provides the Indemnified Party reasonable assurances that the Indemnifying Party has the ability to satisfy any judgment which may be entered against the Indemnified Party, and unless in such Indemnified Party's reasonable judgment a conflict of interest between such Indemnified Party and Indemnifying Party may exist in respect of such action; the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale Indemnifying Party shall be entitled to contribution participate in and to assume the defense thereof, jointly with any other Indemnifying Party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified 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 for any Person involved legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation. No Indemnifying Party shall consent to any settlement without the consent of the Indemnified Party which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability that could have been brought against it in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationaction.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify indemnify, defend and hold harmless each Holder of Registrable SecuritiesInitial Purchaser, the Affiliateseach Notice Holder, directorseach person (a “Controlling Person”), officersif any, employees, members, managers and agents of each such Holder and each Person who controls any such Initial Purchaser or Notice Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, to directors, partners, employees, representatives and agents of any Initial Purchaser, the fullest extent permitted by applicable lawNotice Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses to which they liability, claim or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereofthereof (including the reasonable cost of investigation) arise out of which such Indemnified Party may incur or are based upon any violation of become subject to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in a any Shelf Registration Statement as originally filed or in Prospectus, including any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementdocument incorporated by reference therein, or in any amendment thereof or supplement theretothereto or in any preliminary prospectus, or arise arises out of or are is based upon the any omission or alleged omission to state therein a material fact required to be stated therein in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein (not misleading, or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they such statements were made) , not misleading, and agrees to reimburse each such indemnified partythe Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability expense, liability, claim or action (whether or not the indemnified party is a party to any proceeding)in respect thereof; provided, however, that the Company will shall not be liable required to provide any indemnify pursuant to this Section 6(a) in any such case to the extent that insofar as any such loss, claim, damage, liability expense, liability, claim or expense action arises (i) out of or is based upon any such untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or alleged omission made therein in reliance upon omitted from, and in conformity with written information furnished to the Company in writing by or on behalf of an Initial Purchaser or a Holder to the Company expressly for use in, any Shelf Registration Statement or any Prospectus; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this Section 6(a) shall not inure to the benefit of any Notice Holder from whom the person asserting any such Holder specifically for inclusion therein includinglosses, without limitationdamages, any notice and questionnaireexpenses, liabilities, claims or (ii) out of sales of actions purchased the Registrable Securities made during concerned, to the extent that a Suspension Period after notice is prospectus relating to such Registrable Securities was required to be delivered by such Notice Holder under the Securities Act in connection with such purchase and any such loss, damage, expense, liability, claim or action of such Notice Holder results from the fact that there was not sent or given pursuant to Section 2(e)(iisuch person, at or prior to the written confirmation of the sale of such Registrable Securities to such person, a copy of the final prospectus, provided the Company had previously furnished (whether physically or by public access through the SEC’s Electronic Data Gathering And Retrieval (▇▇▇▇▇) hereof. This system) sufficient copies of such final prospectus to such Holder in a timely manner as to reasonably permit such Holder to send or give a copy of such final prospectus to such person at or prior to the written confirmation of such sale; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise havehave to such Indemnified Party.
(b) Each Holder Holder, severally (and not jointly) , agrees to indemnify indemnify, defend and hold harmless the Company and each of Company, its Affiliates, directors, employeesofficers, members, managers employees and agents and each Person any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, to the fullest extent permitted by applicable law, a “Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damages or liabilities to which they expense, liability, claim or any actions in respect thereof (including the reasonable cost of them investigation) which such Company Indemnified Party may incur or become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of to under the Securities Act, the Exchange Act or state securities lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in, and in a Registration Statement as originally filed or conformity with information (the “Holder Information”) furnished in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company writing by or on behalf of such Holder specifically to the Company expressly for inclusion thereinuse in, any Shelf Registration Statement or Prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such Holder Information required to be stated in any Shelf Registration Statement or Prospectus or necessary to make such Holder Information not misleading; and, subject to the limitation set forth in the immediately preceding clause, each Holder 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, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the total amount omission to be indemnified by so notify such Holder pursuant to this Section 8(b) Indemnifying Party shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party Indemnifying Party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that liability which it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory may have to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationotherwise. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Such Indemnified Party shall have the right to employ its own counsel (and one local counsel)in any such case, and but the indemnifying party shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) shall be at the use expense of counsel chosen by such Indemnified Party unless the indemnifying party to represent the indemnified party would present employment of 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 been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or additional to those available to the indemnifying party; (iii) the indemnifying party such Indemnifying Party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice have charge of the institution defense of such action; Proceeding within thirty (30) days of the receipt of notice thereof or such Indemnified Party shall have reasonably concluded upon the written advice of counsel that there may be one or more defenses available to it that are different from, additional to or in conflict with those available to such Indemnifying Party (iv) in which case such Indemnifying Party shall not have the indemnifying party right to direct that portion of the defense of such Proceeding on behalf of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the defense thereof but the fees and expenses of such counsel shall authorize the indemnified party to employ separate counsel be at the expense of the indemnifying party. No indemnifying party shallsuch Indemnifying Party), in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegationswhich events such reasonable fees and expenses shall be borne by such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm counsel in any one Proceeding or series of attorneys (in addition related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to any local counsel) for all indemnified partiessuch action). An indemnifying party Indemnifying Party shall not be liable under this Section 8 to any indemnified party regarding for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or compromise or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this paragraph, then such 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 sixty (60) Business Days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed such Indemnified Party in accordance with such request prior to the entry date of such settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least thirty (30) days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior written consent of any judgment with respect to Indemnified Party, effect any settlement of any pending or threatened claim, action, suit or proceeding Proceeding in respect of which indemnification such Indemnified Party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying partyIndemnified 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party Indemnified Party from all liability on claims that are the subject matter of such proceeding Proceeding and (ii) does not include any statement as to or any an admission of fault, fault or culpability or a failure to act by or on behalf of any indemnified partysuch Indemnified Party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a6 is unavailable to an Indemnified Party under Section 6(a) or Section 8(b) above is unavailable to 6(b), or insufficient to hold harmless an indemnified party for such Indemnified Party harmless, in respect of any reasonlosses, damages, expenses, liabilities, claims or actions referred to therein, then each applicable Indemnifying Party, in lieu of indemnifying party agrees to such Indemnified Party, shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of such losses, claimsdamages, damages and liabilities expenses, liabilities, claims or actions (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending samei) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by the Holders or the Initial Purchasers, on the other hand, from the offering of the Registrable 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 referred to in clause (i) above but also the relative fault of the indemnifying party Company, on the one hand hand, and of the indemnified party Holders or the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claimsdamages, damages expenses, liabilities, claims or liabilities (or actions in respect thereof)actions, as well as any other relevant equitable considerations. The relative fault of the Company, on the one hand, and of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on Company or by the one hand Holders or the indemnified party on the other Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(e) The Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 6 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 thereof6(d) referred to above in this Section 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 claimabove. Notwithstanding the provisions of this Section 8(d)6, no Person Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights The Holders’ respective obligations to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder contribute pursuant to this Section 8(d) shall be limited 6 are several in proportion to the net proceeds (after deducting underwriters’ discounts respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and commissions) received by such Holder not joint. The remedies provided for in the offering this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to which such Registration Statement any indemnified party at law or Prospectus relatesin equity.
(ef) The indemnity and contribution provisions of contained in this Section 8 will 6 shall remain operative and in full force and effect, effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder of Registrable Securities or the Company Initial Purchasers or any of person controlling any Holder or Initial Purchaser, or the officersCompany, or the Company’s officers or directors or any person controlling Persons referred to in this Section 8 hereof, the Company and will survive the transfer of Registrable Securities.
(fiii) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of any Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution Security by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf RegistrationHolder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company In connection with any registration of Registrable Securities or Takedown Offering pursuant to Section 2.01 or Section 2.02 hereof, RealNetworks agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actharmless, to the fullest extent permitted by applicable lawLaw, from MTVN, its Affiliates, directors, officers and stockholders and each Person who controls MTVN within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) against any and all losses, claims, damages, liabilities and expenses to which they expenses, joint or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses several (or actions in respect thereofincluding reasonable attorneys’ fees) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon caused by any untrue statement or alleged untrue statement of a material fact contained in a any part of any Registration Statement as originally filed Statement, any preliminary or final prospectus used in connection with the Registrable Securities or any amendment thereof, or the Disclosure PackageIssuer FWP, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementa prospectus, in the light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, provided that the Company RealNetworks will not be liable in required to indemnify any case to the extent that Indemnified Persons for any such losslosses, claimclaims, damagedamages, liability liabilities or expense arises (i) out of or is based upon expenses resulting from any such untrue statement or alleged omission if such untrue statement or omission or alleged omission was made therein in reliance upon on and in conformity with written any information with respect to any Indemnified Person furnished to RealNetworks in writing by MTVN expressly for use therein. In connection with an underwritten offering (including any Takedown Offering), RealNetworks will indemnify each Underwriter, the Company by or on behalf officers and directors of any such Holder specifically for inclusion therein includingUnderwriter, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company such Underwriter (within the meaning of either the Securities Act or the Exchange Act, ) to the fullest same extent permitted as provided above with respect to the indemnification of MTVN; provided that such Underwriter agrees to indemnify RealNetworks to the same extent as provided below with respect to the indemnification of RealNetworks by applicable lawMTVN.
(b) In connection with any Registration Statement, from preliminary or final prospectus or Issuer FWP, MTVN agrees to indemnify RealNetworks, the Directors, its officers who sign such Registration Statement and against any and all losseseach Person, claimsif any, damages or liabilities to which they or any who controls RealNetworks (within the meaning of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation either Section 15 of the Securities Act, Exchange Act or state securities lawsSection 20 of the Exchange Act) to the same extent as the foregoing indemnity from RealNetworks to MTVN, upon but only with respect to information with respect to any untrue statement or alleged untrue statement of a material fact contained Indemnified Person furnished to RealNetworks in a Registration Statement as originally filed or writing by MTVN expressly for use in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, preliminary or in any amendment thereof or supplement theretofinal 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 the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relatesIssuer FWP.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of In case any action, such indemnified party will, if a claim proceeding (including any governmental investigation) will be instituted involving any Person in respect thereof is of which indemnity may be sought pursuant to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a2.08(a) or (b), such Person (hereinafter called the “indemnified party”) above unless will promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will notparty, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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 upon request of the indemnified party, be will retain counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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 and will pay the institution fees and disbursements of such actioncounsel related to such proceeding; or provided that failure to so notify an indemnifying party shall not relieve it from any liability which it may have hereunder, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice. In any such proceeding, any indemnified party will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of such indemnified party unless (ivi) the indemnifying party shall authorize and the indemnified party will have mutually agreed to employ separate the retention of such counsel at or (ii) the expense of named parties to any such proceeding (including any impleaded parties) include both the indemnifying partyparty and the indemnified party and the indemnified party will have been advised in writing by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicting interests between them. No It is understood that the indemnifying party shallwill not, in connection with any one action or separate but substantially similar proceeding or related actions proceedings in the same jurisdiction arising out of the same general circumstances or allegationsjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such indemnified parties, and that all such reasonable fees and expenses will be reimbursed as they are incurred. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. An The indemnifying party shall will not be liable under for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there has been 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 will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 8 to 2.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 15 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party will not have reimbursed the indemnified party regarding in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnified party, effect any settlement 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 any indemnified party is or contribution may be could have been a party and indemnity could have been sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) is of a claim for monetary damages only, such claim has been settled by the payment of money only and such settlement 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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyproceeding.
(d) In If the event that indemnification provided for in this Section 2.08 from the indemnity provided in Section 8(a) or Section 8(b) above indemnifying party is unavailable to or insufficient to hold harmless an indemnified party for hereunder in respect of any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (includingor expenses referred to in this Section 2.08, without limitationthen the indemnifying party, legal in lieu of indemnifying such indemnified party, will contribute to the amount paid or other payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which actions 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 fault shall of such indemnifying party and indemnified party will be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been made by, or relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement action. The amount paid or omission. payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above will be deemed to include, subject to the limitations set forth in Section 2.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(e) The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d2.08(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 8(d2.08(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 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 Section 8(d), no No Person guilty of “fraudulent misrepresentation 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(ef) The Notwithstanding the provisions of this Section 8 will remain 2.08, MTVN shall not be required to make any indemnification or contribution payment, in full force and effectthe aggregate, regardless of in any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any amount in excess of the officers, directors or controlling Persons referred amount of the net proceeds received by MTVN with respect to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(fg) To the extent any If indemnification by an indemnifying party is prohibited or limited by lawavailable under this Section 2.08, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 will indemnify each indemnified party to the fullest full extent permitted by law; provided, however, that: (iprovided in Sections 2.08(a) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (iib) contribution by any seller of Registrable Securities shall be limited in amount without regard to the net amount relative fault of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registrationsaid indemnifying party or indemnified party or any other equitable consideration provided for in Section 2.08(d) or (e).
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless In the case of each Holder offering of Registrable SecuritiesShares made pursuant to this Article III, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange ActCompany shall, to the fullest extent permitted by applicable law, indemnify and hold harmless each Selling Holder and its directors and officers and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such Selling Holder from and against any and all losses, claims, damagesdamages or liabilities, liabilities actions or proceedings (whether commenced or threatened) in respect thereof and expenses (including reasonable and documented fees of counsel) (collectively, “Claims”) to which they or any of them each such indemnified party may become subject subject, insofar as such losses, claims, damages, liabilities and expenses Claims (or actions including any amounts paid in respect thereofsettlement reached in accordance with the requirements for consent as provided herein) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any (i) an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment thereof or supplement thereto, or arise out of or are based upon the any document incorporated by reference therein, (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 Disclosure Package, any preliminary or final Prospectus (including any preliminary, final or summary Prospectus or Free Writing Prospectus included in any incorporated into such Registration Statement), in the light of the circumstances under which they were made) not misleadingmisleading or (iii) any violation by the Company of the Securities Act, and agrees to reimburse each such indemnified party, as incurred, for the Exchange Act or any legal or other expenses reasonably incurred by them state securities law in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding)offering; provided, however, that the Company will shall not be liable to any such indemnified party in any such case to the extent that any such loss, claim, damage, liability or expense arises (i) Claims arise out of or is are based upon any such an untrue statement or alleged untrue statement contained in or omission or alleged omission made therein from such Registration Statement, or preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement), or amendment or supplement thereto, in reliance upon and in conformity with written information furnished in writing to the Company by such Selling Holder or on behalf any Representative of such Selling Holder expressly for use therein; provided, further, that that the foregoing indemnity agreement, with respect to any Prospectus or Free Writing Prospectus, shall not inure to the benefit of any such indemnified party if the Person asserting any Claims against such indemnified party purchased Shareholder Shares and (x) prior to the time of sale of the Shareholder Shares to such Person (the “Time of Sale”), the Company shall have notified such Selling Holder specifically for inclusion that the Prospectus or Free Writing Prospectus (as it existed prior to the Time of Sale) contains an untrue statement of material fact or omits to state therein includinga material fact required to be stated therein or necessary to make the statements therein not misleading, without limitation(y) such untrue statement or omission of a material fact was corrected in a Prospectus or Free Writing Prospectus, and such corrected Prospectus or Free Writing Prospectus was provided to such Selling Holder in advance of the Time of Sale, and (z) such corrected preliminary Prospectus or Free Writing Prospectus was not conveyed to such Person at or prior to the Time of Sale. In connection with any notice and questionnaire, or (ii) out of sales underwritten offering of Registrable Securities Shares made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which this Article III, the Company may otherwise haveshall indemnify and hold harmless each underwriter, the officers and directors of such underwriter and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter to substantially the same extent as provided above with respect to the indemnification of each Selling Holder by the Company.
(b) Each In the case of each offering of Registrable Shares made pursuant to this Article III, each Selling Holder severally (and not jointly) agrees shall, to the extent permitted by applicable law, indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers directors and agents officers and each Person who Person, if any, that controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to ) the fullest extent permitted by applicable law, Company from and against any and all losses, claims, damages or liabilities Claims to which they or any of them each such indemnified party may become subject subject, insofar as such losses, claims, damages or liabilities Claims (including any amounts paid in settlement reached in accordance with the requirements for consent as provided herein) arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any preliminary or final Prospectus (including any Free Writing Prospectus incorporated into such Registration Statement) contained therein, or any amendment thereof or supplement thereto, or any document incorporated by reference therein, 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 Disclosure Package, any preliminary or final Prospectus (including any preliminary, final or summary Prospectus or Free Writing Prospectus included in any incorporated into such Registration Statement), in the light of the circumstances under which they were made) not misleading, to the extent, but in each case only to the extent, extent that any such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any written reliance upon and in conformity with information relating to such Holder furnished in writing to the Company by such Selling Holder or on behalf any Representative of such Selling Holder specifically expressly for inclusion use therein; provided, however, that . The liability of any Selling Holder under the total amount to be indemnified by such Holder pursuant to foregoing provisions of this Section 8(b3.8(b) shall be limited to an amount equal to the dollar amount of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Selling Holder in the offering from Shareholder Shares sold by such Selling Holder pursuant to which such Registration Statement or Prospectus relatesProspectus. In connection with any underwritten offering of Registrable Shares made pursuant to this Article III, the Company shall indemnify and hold harmless each underwriter, the officers and directors of such underwriter and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter and any other selling securityholder in such offering (and, in the case of each such other selling securityholder, such selling securityholder’s officers and directors and each Person, if any, that controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such selling securityholder), to substantially the same extent as provided above with respect to the indemnification of the Company by each Selling Holder.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of If, for any actionreason, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred provisions contemplated by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a3.8(a) or Section 8(b3.8(b) above is are unavailable to or are insufficient to hold harmless an indemnified party for in respect of any reasonClaims referred to therein other than by the terms of this Section 3.8, then each applicable indemnifying party agrees to Indemnifying Party shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party, on the one hand hand, and the indemnified party party, on the other in connection hand, with the respect to statements or omissions which that that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerationsClaims. The relative fault of such Indemnifying Party and 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 omission to state a material fact relates to information supplied by the indemnifying party on the one hand such Indemnifying Party or the by such indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the first sentence of this Section 3.8(c) is not permitted by applicable law, then each Indemnifying Party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the Indemnifying Party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 8(d3.8(c) were to be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 preceding sentences of this Section 8(d3.8(c). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) Claims referred to above in this Section 8(d) shall be deemed to include (subject to the limitations set forth in Section 3.9) any reasonable and documented legal or other fees or out-of-pocket expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action action, proceeding or claim. Notwithstanding the provisions of this Section 8(d), no 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total Shareholder shall not be liable to contribute any amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to in excess of the dollar amount of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering Shareholder from Shareholder Shares sold by the Shareholder pursuant to which such Registration Statement or Prospectus relatesProspectus.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Combination Agreement (CF Industries Holdings, Inc.)
Indemnification; Contribution. (a) The Company agrees Partnership and the General Partner agree to indemnify and hold harmless each Holder of Registrable Securities(including the Dealer Managers, the Affiliatesif applicable, directors, officers, employees, members, managers and agents of each such Holder and each Person Participating Broker-Dealer) and each Person, if any, who controls any such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act, to the fullest extent permitted by applicable law, from and Act as follows:
(i) against any and all lossesloss, claimsliability, damagesclaim, liabilities damage and expenses to which they or any of them may become subject insofar expense, as such lossesincurred, claims, damages, liabilities and expenses (or actions in respect thereof) arise arising out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, or upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed pursuant to which Registrable Securities were registered under the Securities Act or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) arising out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any Prospectus or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, 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 in order to make the statements therein (therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading;
(ii) against any and all loss, liability, claim, damage and expense, as incurred, to the extentextent of the aggregate amount paid in settlement of any litigation, but only to the extentor any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided, that any such settlement is effected with the written consent of the Partnership; and
(iii) against any and all expense, as incurred (including the reasonable fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in 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 untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Partnership or the General Partner by such Holder or any underwriter expressly for use in a Registration Statement or any Prospectus.
(b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Partnership, the General Partner and the other selling Holders, and each of their respective directors and officers, and each Person, if any, who controls the Partnership, the General Partner or any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 4(a), as incurred, but only with respect to untrue statements or omissions, or alleged omission is contained untrue statements or omissions, made in the Shelf Registration Statement or any Prospectus included therein in reliance upon and in conformity with written information relating with respect to such Holder furnished to the Company by Partnership or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified General Partner by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder expressly for use in the offering to which such Shelf Registration Statement or Prospectus relatessuch Prospectus.
(c) Promptly after receipt by an Each indemnified party under this Section 8 of shall give notice of the commencement as promptly as reasonably practicable to each indemnifying party of any action, such indemnified party will, if a claim action or proceeding commenced against it in respect thereof is to of which indemnity may be made against the indemnifying party under this Section 8sought hereunder, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the an indemnifying party (i) will shall not relieve such indemnifying party 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 under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to which it may have otherwise than on account of this indemnity agreement; the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. 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, of such action or proceeding 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party and shall not be liable to such indemnified party under this Section 4 for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigationthereof. Notwithstanding the indemnifying party’s rights An indemnified party may participate at its own expense in the prior sentencedefense of such action; provided, however, that counsel to the indemnified party shall have not (except with the right to employ its own counsel (and one local counsel), and consent of the indemnifying party shall bear the reasonable fees, costs and expenses of such separate party) also be 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) . In no event shall the indemnifying party shall not have employed or parties be liable for the fees and expenses of more than one counsel satisfactory (in addition to the any local counsel) separate from their own counsel for all 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, parties in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances. No indemnifying party shall, be liable for without the fees and expenses prior written consent of more than one separate firm of attorneys (in addition to any local counsel) for all the indemnified parties. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement , settle or compromise or consent to the entry of any judgment with respect to any pending litigation, or threatened claim, action, suit any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution may could be sought hereunder under this Section 4 (whether or not the indemnified parties are actual or potential parties to such claim or action) thereto), unless such settlement, compromise or consent is consented to by such 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 or compromise unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such litigation, investigation, proceeding or claim and (ii) does not include any a statement as to or any an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If the event that the indemnity indemnification provided for in this Section 8(a) or Section 8(b) above 4 is for any reason unavailable to or insufficient to hold harmless an indemnified party for in respect of any reasonlosses, liabilities, claims, damages or expenses referred to therein, then each applicable indemnifying party agrees to shall contribute to the aggregate amount of such losses, liabilities, claims, damages and liabilities (includingexpenses incurred by such indemnified party, without limitationas incurred, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party Partnership or the General Partner on the one hand and the indemnified party Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or liabilities (or actions expenses, and the relative benefit received by the indemnified party, on the one hand, and the indemnifying party, on the other hand, in respect thereof)connection with the Exchange Offer and the Shelf Registration, as well as any other relevant equitable considerations. The relative fault of the Partnership or the General Partner on the one hand and the Holders 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 omission to state a material fact relates to information supplied by the indemnifying party on the one hand Partnership or the indemnified party on the other Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Partnership, the General Partner and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(d) 4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(d)4. The aggregate amount paid or payable of losses, liabilities, claims, damages 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 Section 8(d) 4 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 Section 8(d), no 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. For purposes of this Section 84, each Person Person, if any, who controls any a Holder of Registrable Securities, agent or underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent and each director of the Partnership or underwriterthe General Partner, and each Person Person, if any, who controls the Company Partnership or the General Partner within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities Partnership or the Company or any of the officersGeneral Partner, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securitiesrespectively.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of If any Registrable Securities, ---------- ----------------------------- Securities are included in a registration statement under this Agreement:
9.1. To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, employee, agent and consultant of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any violation of the Securities Actfollowing statements, Exchange Act omissions or state securities laws, or upon any violations (collectively a "Violation"):
(a) Any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement, including any preliminary prospectus or in any amendment thereof, or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon the ;
(b) The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading; or
(in c) Any violation or alleged violation by the case Company of the Disclosure PackageSecurities Act, the Exchange Act, any applicable state securities law or any preliminaryrule or regulation promulgated under the Securities Act, final the Exchange Act or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for applicable state securities law; any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case underwriter to the extent that any such loss, claim, damage, liability loss is based on or expense arises (i) out of an untrue statement or is based upon alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement statement, or such omission or alleged omission made therein omission, and a copy of the final prospectus has not been sent or given to such Person at or prior to the confirmation of sale to such Person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. Pursuant to underwriting agreements, if any, entered into as contemplated by Section 6.5 ----------- hereof, the Company shall also provide customary indemnification of underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act). In no case shall the Selling Holders or any other Holders be required to provide any indemnification of underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) other than to the same extent provided to the Company under Section 9.2 hereof. -----------
9.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Selling Holder specifically expressly for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This indemnity agreement will be use in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as connection with such losses, claims, damages or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or state securities laws, upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, 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 (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion thereinregistration; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than that the indemnification obligation provided in paragraph (a) or (b) above. 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, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred required by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one 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. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, 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. An indemnifying party shall not be liable under this Section 8 to any indemnified party regarding any settlement 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 is consented to by such 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 or compromise unless such settlement or compromise (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 any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b) above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party 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 fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 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 Section 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 Section 8(d), 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. For purposes of this Section 8, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and 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 Section 8(d). Notwithstanding the foregoing, the total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates.
(e) The provisions of this Section 8 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 8 hereof, and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 8 to the fullest extent permitted by law; provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities pursuant to such Shelf Registration.-------- -------
Appears in 1 contract
Sources: Registration and Antidilution Rights Agreement (Emergent Information Technologies Inc)