Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement. (b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation. (d) The 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 9.6 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.
Appears in 2 contracts
Sources: Stockholders' Agreement (Pathnet Telecommunications Inc), Stockholders' Agreement (Pathnet Telecommunications Inc)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriterHolder, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))the Affiliates, and directors, officers, employees employees, members, managers and agents of any of them (a "Selling Holder"), each such Holder and each person Person who controls any of them such Holder within the meaning of Section 15 of either the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and 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 to which they or any claim asserted)of them may become subject insofar as such losses, to which theyclaims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a 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 themor are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and 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 or questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 2(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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including a Registration Statement as originally filed or in any related preliminary or definitive prospectusamendment 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 to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements in it therein not misleading, to the extent, but only to the extent, that any such untrue statement or (iii) alleged untrue statement or omission or alleged omission is contained in any violation by written information relating to such Holder furnished to the Company by or on behalf of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registrationHolder specifically for inclusion therein; provided, however, that the Company total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be limited to the gross proceeds (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 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 extent defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified parties shall collectively have the right to employ 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 lossaction; 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, damageaction, expense suit or liability arises from and 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 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 consented to the Company by such underwriterindemnifying party. No indemnifying party, Selling Holder in the defense of any such claim or Controlling Person expressly for use litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise that does not include as an unconditional term thereof the giving by the claimant or plaintiff therein, to such indemnified party, of a full and final release from all liability in such registration statement. With respect to such untrue statement claim or omission litigation.
(d) In the event that the indemnity provided in Section 8(a) or alleged untrue statement Section 8(b) is unavailable to or omission in the information furnished insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such aggregate losses, claims, damages and liabilities (including, without limitation, legal or liabilities indemnified against equal other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to that proportion of the total securities sold under which such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, indemnifying party on the one hand and by the indemnified party on the other Selling Holders and the underwriters from the offering of the Registrable Securities and Founder SecuritiesINSW Common Stock. If, as applicablehowever, or (ii) if the allocation provided by clause (i) above 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 the such relative benefits referred to in clause (i) above but also the relative fault of the Company, indemnifying party on the one hand and the indemnified party on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses damages or liabilitiesliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, indemnifying party on the Selling Holders one hand or the underwriters indemnified party on the other and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders and the underwriters parties agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b8(d) were determined by pro rata allocation (even if the Holders or per capita allocation 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 9.6(b) in excess 8(d). The amount paid or payable by an indemnified party as a result of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal (or actions in respect thereof) referred to that proportion of the total securities sold under such registration statement which is being sold above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such Selling Holder indemnified party in connection with investigating or (ii) defending any such action or claim. Notwithstanding the proceeds received by such Selling Holder from its sale provisions of Registrable Securities or Founder Securitiesthis Section 8(d), as the case may be, under such registration statement. No person found 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 found guilty of such fraudulent misrepresentation. For purposes of this Section 8, each Person who controls any Holder, 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).
(de) The amount paid by an indemnifying party or payable to an indemnified party as a result provisions of the losses, claims, damages and liabilities referred to in this Section 9.6 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 this Section 9.6 shall 8 will remain in full force and effect effect, regardless of any investigation made by or on behalf of any Holder or the indemnified parties Company or any officerof the officers, director, employee, agent directors or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant Persons referred to in this Section 9.6 shall be paid 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 when 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 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 as (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such fees and costs are incurred by seller from the indemnified partysale of such Registrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (International Seaways, Inc.), Registration Rights Agreement (International Seaways, Inc.)
Indemnification; Contribution. (a) Incident The Guarantor and the Issuer agree to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, not misleading, and the Guarantor and the Issuer shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, at common law however, that the Guarantor and the Issuer shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or otherwise 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 same extent 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, expense, liability, claim or 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 (A) 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 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 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 (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 Guarantor pursuant to Section 3(i) or 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 sentenceclause, 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 such Holder may otherwise have to the Guarantor and the Issuer or any of its controlling persons. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the CompanyGuarantor and the Issuer, on the one hand, and by the Holders or the Initial Purchasers, on the other Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 CompanyGuarantor and the Issuer, on the one hand, and of the Holders or the Initial Purchasers, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, the Selling Holders Guarantor and the underwriters 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 Company, Guarantor and the Selling Issuer or by the Holders or the underwriters Initial Purchasers and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The CompanyGuarantor, the Selling Issuer, the Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchasers or any officerperson controlling any Holder or Initial Purchaser, directoror the Guarantor, employeeor the Issuer, agent or the Guarantor’s or the Issuer’s officers or directors or any person controlling person the Guarantor or the Issuer and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Medical Properties Trust Inc), Registration Rights Agreement (Medical Properties Trust Inc)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (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, expenses and liabilities, joint or several, to other expenses) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 light of the circumstances under which they were made, not misleading, except insofar as any such loss, damage, expense, liability, judgment 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 furnished in writing by or on behalf of any Holder to the Company expressly for use therein.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) to the same extent provided as the foregoing indemnity from the Company to each Holder Indemnified Party, but only 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 information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 immediately preceding sentencelight of the circumstances under which they were made, not misleading, in connection with such information. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 “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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 7 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 7 in respect of any losses, claims, damages, expenses expenses, liabilities, judgments or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 7 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 7, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 7 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Cooper Cameron Corp), Registration Rights Agreement (Cameron International Corp)
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall indemnify and hold harmless each underwriter, each Holder who offers or sells any such of Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person Person, if any, who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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, liabilities and expenses (including reasonable attorneys' fees, disbursements and liabilitiesexpenses, joint as incurred) (collectively, "Losses") incurred by such party pursuant to any actual or severalthreatened action, to which theysuit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of thema material fact required to be stated in, may become subject the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (i) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (ii) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (iii) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented. Notwithstanding the foregoing provisions of this Section 10(a), the Company shall not be liable to any Holder or to any Person who controls such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) under the Securities Act, indemnity agreement in this Section 10(a) for any Losses that arise out of or are based upon any of the Exchange Act matters specified in clause (ii) or other federal or state statutory law or regulation, at common law or otherwise to the same extent provided in (iii) of the immediately preceding sentence. In no event, however, shall the liability sentence or that arise out of a Selling Holder for indemnification under this Section 9.6(a) or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of any Prospectus if either (i) that proportion (A) such Holder failed to send or deliver a copy of the total Prospectus with or prior to the delivery of such losses, claims, damages or liabilities indemnified against equal to that proportion written confirmation of the total securities sold under such registration statement which is being sold sale of Registrable Securities by such Selling Holder to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the proceeds received Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such Selling Holder from its thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities (or Founder Securities, as by such Holder to the case may be) under Person asserting the claim from which such registration statementLosses arise.
(b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, jointly and severally with all other Holders that are Affiliates of such Holder (and, otherwise, severally and not jointly with any other Holders), indemnify and hold harmless the Company, its directors and officers, and each Person, if any, who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and all other Holders against all Losses incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that the liability of each Holder hereunder shall be limited to the proportion of any such Losses that is equal to the proportion that the net proceeds from the sale of Registrable Securities sold by such Holder under such Registration Statement bears to the total net proceeds from the sale of all securities sold thereunder, but not in any event to exceed the net proceeds received by such Holder from the sale of Registrable Securities covered by such Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 10 except to the extent the indemnifying party shall have been actually 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 of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, 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 legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. 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 counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties (the selection of which counsel by such Holders of a majority of such Registrable Securities shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement 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 in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 10. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 9.6(a) above for any reason 10 is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of to any losses, claims, damages, expenses or liabilities referred to thereinLosses, then each the indemnifying party under this Section 9.6party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) Losses 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 and Founder Securities, as applicable, 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, the other Selling Holders indemnifying party and the underwriters indemnified party in connection with the statements or omissions actions which resulted in such losses, claims, damages, expenses or liabilitiesLosses, as well as any other relevant equitable considerations. The relative benefits received by ; provided, however, that the Company, the Selling Holders and the underwriters liability of each Holder hereunder shall be deemed limited to be in the same respective proportions proportion of any such Losses that is equal to the proportion that the net proceeds from the offering (before deducting expenses) sale of Registrable Securities sold by such Holder under a Registration Statement bears to the total net proceeds from the sale of all securities sold thereunder, but not in any event to exceed the net proceeds received by such Holder from 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 sale of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities and Founder Securities, as applicablecovered by such Registration Statement. The relative fault of the Company, the Selling Holders such indemnifying party and the underwriters indemnified party shall be determined by reference to, among other things, whether the any action in question, including any untrue statement 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 Companyby, the Selling Holders such indemnifying party or the underwriters 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.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined payable by pro rata or per capita allocation or by any other method of allocation which does not take account a party as a result of the equitable considerations Losses referred to above shall be deemed to include, subject to the limitations set forth in the immediately preceding paragraph. In no eventSection 10(c), however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages legal or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold other fees and expenses reasonably incurred by such Selling Holder indemnified party in connection with any investigation or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statementproceeding. No person found 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 found guilty of such fraudulent misrepresentation.
(d. The parties agree that it would not be just and equitable if contribution pursuant to this Section 10(d) The amount paid were determined by an indemnifying party pro rata allocation or payable to an indemnified party as a result by any other method of allocation that does not take into account the losses, claims, damages and liabilities consideration referred to in this Section 9.6 10(d). If indemnification is available under this Section 10, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 10(a) or 10(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 10(d).
(e) The provisions of this Section 10 shall be deemed in addition to include, subject any liability which any indemnifying party may have 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 and shall survive the same are incurred. The indemnification and contribution provided for termination of this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified partyAgreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Itc Deltacom Inc), Registration Rights Agreement (Itc Deltacom Inc)
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall indemnify and hold harmless each underwriter, each Holder who offers or sells any such of Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person Person, if any, who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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, liabilities and expenses (including reasonable attorneys' fees, disbursements and liabilitiesexpenses, joint as incurred) (collectively, "Losses") incurred by such party pursuant to any actual or several------ threatened action, to which theysuit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of thema material fact required to be stated in, may become subject the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (i) any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (ii) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (iii) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented. Notwithstanding the foregoing provisions of this Section 10(a), the Company shall not be liable to any Holder or to any Person who controls such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) under the Securities Act, indemnity agreement in this Section 10(a) for any Losses that arise out of or are based upon any of the Exchange Act matters specified in clause (ii) or other federal or state statutory law or regulation, at common law or otherwise to the same extent provided in (iii) of the immediately preceding sentence. In no event, however, shall the liability sentence or that arise out of a Selling Holder for indemnification under this Section 9.6(a) or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of any Prospectus if either (i) that proportion (A) such Holder failed to send or deliver a copy of the total Prospectus with or prior to the delivery of such losses, claims, damages or liabilities indemnified against equal to that proportion written confirmation of the total securities sold under such registration statement which is being sold sale of Registrable Securities by such Selling Holder to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the proceeds received Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such Selling Holder from its thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities (or Founder Securities, as by such Holder to the case may be) under Person asserting the claim from which such registration statementLosses arise.
(b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall, jointly and severally with all other Holders that are Affiliates of such Holder (and, otherwise, severally and not jointly with any other Holders), indemnify and hold harmless the Company, its directors and officers, and each Person, if any, who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and all other Holders against all Losses incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that the liability of each Holder hereunder shall be limited to the proportion of any such Losses that is equal to the proportion that the net proceeds from the sale of Registrable Securities sold by such Holder under such Registration Statement bears to the total net proceeds from the sale of all securities sold thereunder, but not in any event to exceed the net proceeds received by such Holder from the sale of Registrable Securities covered by such Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 10 except to the extent the indemnifying party shall have been actually 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 of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, 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 legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. 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 counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement 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 in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 10. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 9.6(a) above for any reason 10 is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of to any losses, claims, damages, expenses or liabilities referred to thereinLosses, then each the indemnifying party under this Section 9.6party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) Losses 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 and Founder Securities, as applicable, 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, the other Selling Holders indemnifying party and the underwriters indemnified party in connection with the statements or omissions actions which resulted in such losses, claims, damages, expenses or liabilitiesLosses, as well as any other relevant equitable considerations. The relative benefits received by ; provided, however, that the Company, the Selling Holders and the underwriters liability of each Holder hereunder shall be deemed limited to be in the same respective proportions proportion of any such Losses that is equal to the proportion that the net proceeds from the offering (before deducting expenses) sale of Registrable Securities sold by such Holder under a Registration Statement bears to the total net proceeds from the sale of all securities sold thereunder, but not in any event to exceed the net proceeds received by such Holder from 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 sale of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities and Founder Securities, as applicablecovered by such Registration Statement. The relative fault of the Company, the Selling Holders such indemnifying party and the underwriters indemnified party shall be determined by reference to, among other things, whether the any action in question, including any untrue statement 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 Companyby, the Selling Holders such indemnifying party or the underwriters 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.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined payable by pro rata or per capita allocation or by any other method of allocation which does not take account a party as a result of the equitable considerations Losses referred to above shall be deemed to include, subject to the limitations set forth in the immediately preceding paragraph. In no eventSection 10(c), however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages legal or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold other fees and expenses reasonably incurred by such Selling Holder indemnified party in connection with any investigation or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statementproceeding. No person found 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 found guilty of such fraudulent misrepresentation.
(d. The parties agree that it would not be just and equitable if contribution pursuant to this Section 10(d) The amount paid were determined by an indemnifying party pro rata allocation or payable to an indemnified party as a result by any other method of allocation that does not take into account the losses, claims, damages and liabilities consideration referred to in this Section 9.6 10(d). If indemnification is available under this Section 10, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 10(a) or 10(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 10(d).
(e) The provisions of this Section 10 shall be deemed in addition to include, subject any liability which any indemnifying party may have 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 and shall survive the same are incurred. The indemnification and contribution provided for termination of this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified partyAgreement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Itc Holding Co Inc), Registration Rights Agreement (Itc Deltacom Inc)
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall will indemnify and hold harmless each underwriterholder of Warrant Stock registered pursuant to this Agreement with the Commission, or under any blue sky law or regulation, against any losses, claims, damages or liabilities, joint or several, to which such holder may become subject under the Act or otherwise, but only to the extent that such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, registration statement, prospectus or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Holder who offers such holder for any legal or sells any other expenses reasonably incurred by such Registrable Securities or Founder Securities holder in connection with such registration statement (including its partners (including partners of partners and stockholders of investigating or defending any such partners))action or claim; 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 such document, in reliance upon and directors, officers, employees in conformity with written information furnished to the Company by any holder expressly for use therein
(b) Each holder of Common Stock registered pursuant to this Agreement will indemnify and agents of any of them (a "Selling Holder"), and each person who controls any of them within hold harmless the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and Company against any and all losses, claims, damages, expenses and liabilities, joint damages 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), liabilities to which they, or any of them, the Company may become subject subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based on (i) any upon an untrue statement or alleged untrue statement of a material fact contained in such any preliminary prospectus, registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements in it therein not misleading, or (iii) any violation by in each case to the Company of extent, but only to the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registration; provided, howeverextent, that the Company shall not be liable to the extent that such loss, claim, damage, expense untrue statement or liability arises from and is based on an alleged untrue statement or omission or alleged untrue statement or omission was made in any such document, in reliance on upon and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder 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 written information furnished to the Company by such Selling Holder holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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 theytherein, or in a document to be filed with the Commission 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 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statementcommission.
(c) Promptly after receipt by an indemnified party under subsections (a) or (b) of this Section 16 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under either such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under either of such subsections. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After receipt of written notice from the indemnifying party to such indemnified party of its election to 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, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation incurred prior to the assumption by the indemnifying party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 16 is held by a court of competent jurisdiction unavailable or insufficient to be unavailable to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages, expenses damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses damages or liabilities (ior actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company, the other Selling Holders Company and the underwriters holder or holders from this Agreement and from the offering of the Registrable Securities and Founder Securitiesshares of Warrant Stock. If, as applicablehowever, or (ii) if the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable lawlaw 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 the such relative benefits referred to in clause (i) above but also the relative fault of the Company, the other Selling Holders Company and the underwriters holders in connection with the statements or omissions which resulted in such losses, claims, damages, expenses damages or liabilitiesliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, the Selling Holders Company or the underwriters holder and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders Company and the underwriters holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(bsubparagraph (d) were determined by pro rata or per capita allocation (even if the 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 the immediately preceding paragraphthis subparagraph (d). In no event, however, shall a Selling Holder be required to contribute any amount under Except as provided in subparagraph (c) of this Section 9.6(b) in excess of 16, the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(d) The amount paid by an indemnifying party or payable to by an indemnified party as a result of the losses, claims, damages and or liabilities (or actions in respect thereof) referred to above in this Section 9.6 subparagraph (d) shall be deemed to include, subject to the limitations set forth above, include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any provision in this subparagraph (d) to the contrary, payable as no holder shall be liable for any amount, in the same are incurred. 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 indemnification and contribution provided for obligations of the Company under this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 16 shall be paid by in addition to any liability which the indemnifying party when and as such fees and costs are incurred by the indemnified partyCompany may otherwise have at law or in equity.
Appears in 2 contracts
Sources: Warrant Purchase Agreement (Parallel Petroleum Corp), Warrant Purchase Agreement (Parallel Petroleum Corp)
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9Article V, and subject to applicable law, the Company shall will indemnify and hold harmless each underwriter, each Holder Investor or Founder (including for purposes of this Article V each Permitted Transferee) who offers or sells any such Registrable Securities or Founder Securities Shares in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling HolderStockholder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended 1934 (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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, 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading, or (iii) any violation by the Company of the Securities Act, any state securities or "blue sky sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall will not be liable to 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 Stockholder 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 Stockholder expressly for use in such registration statement, such Selling Holder shall Stockholder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), and each other Holder Selling Stockholder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) whose securities are so registered), 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. In no event, however, shall the liability of a Selling Holder Stockholder for indemnification under this Section 9.6(a5.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that the proportion of the total securities sold under such registration statement which is being sold by such Selling Holder Stockholder or (ii) the proceeds received by such Selling Holder Stockholder from its sale of Registrable Securities (or Founder Securities, as the case may be) Shares under such registration statement.
(b) If the indemnification provided for in Section 9.6(a5.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.65.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the other Selling Holders Stockholders and the underwriters from the offering of the Registrable Securities and Founder Securities, as applicable, Shares 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, the other Selling Holders Stockholders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders 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 and the Selling Holders 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 and Founder Securities, as applicableShares. The relative fault of the Company, the Selling Holders 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 a material fact relates to information supplied by the Company, the Selling Holders Stockholders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders Stockholders, and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b5.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder Stockholder be required to contribute any amount under this Section 9.6(b5.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that the proportion of the total securities Registrable Shares sold under such registration statement which is are being sold by such Selling Holder Stockholder or (ii) the proceeds received by such Selling Holder Stockholder from its sale of Registrable Securities or Founder Securities, as the case may be, Shares under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(dc) The 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 9.6 5.6 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 9.6 shall 5.6 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.
Appears in 2 contracts
Sources: Stockholders' Agreement (Boron Lepore & Associates Inc), Stockholders' Agreement (Boron Lepore & Associates Inc)
Indemnification; Contribution. (a) Incident to any registration statement referred of any Registrable Securities pursuant to in this Section 9, and subject to applicable lawAgreement, the Company shall indemnify will indemnify, reimburse and hold harmless to the fullest extent permitted by law, each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees employees, representatives and agents of any of them them) (each, a "“Selling Holder"”), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934(each, as amended (hereinafter the "Exchange Act") (a "“Controlling Person")”), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigationinvestigative, legal and other expenses reasonably 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities or blue sky laws statutory law or any rule or regulation thereunder promulgated under the Securities Act, the Exchange Act or any state statutory law, (iv) any failure to register or qualify the Registrable Securities in connection with any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company (the undertaking of any underwriter chosen by the Company being attributed to the Company) will undertake such registrationregistration or qualification on the Selling Holder’s behalf (provided that in such instance the Company shall not be so liable if it has undertaken its best efforts to so register or qualify the Registrable Securities), or (v) any blue sky application or other document executed by the Company specifically for the purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof; provided, however, that the Company shall will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission of a material fact contained in such registration statement 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 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 shall will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and ), directors, officers, employees employees, representatives and agents of any of them) whose securities are so registered, and each person who controls Controlling Person of any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Actthem), 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 as a direct result of such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the same extent Company by such Selling Holder expressly for use in such registration statement, provided in that the immediately preceding sentenceobligation of the Selling Holder will be several and not joint and several. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company5(a) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the net proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.65, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) in such proportion as is appropriate to reflect (i) the relative benefits received by the Company, the other Selling Holders and the underwriters from the offering of the Registrable Securities and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or 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 for registration under Section 3(a) or Section 3(b) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed solely 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Company and each Selling Holders and the underwriters agree Holder agrees that it would not be just and equitable if contribution pursuant to this Section 9.6(b5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b5(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the net proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. No person 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. The Selling Holder’s obligations pursuant to this Section 5(b) shall be several in proportion to the amount of Registrable Securities registered by it and not joint and several.
(dc) The amount required to be 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 9.6 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.this
Appears in 2 contracts
Sources: Registration Rights Agreement (First Mercury Financial Corp), Registration Rights Agreement (First Mercury Financial Corp)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))Holder, and directorseach person, officersif any, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action 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 furnished in writing by or on behalf of any Initial Purchaser or Holder to the Company expressly for use therein and (ii) 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 the Registrable Securities concerned, to the extent that a 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 to such person, at common law or otherwise prior to the same extent 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 have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding sentencethis 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders or the Initial Purchasers on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders or the Initial Purchasers on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and or any Initial Purchaser on the underwriters 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 Company, Company or by the Selling Holders or the underwriters such Initial Purchaser and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or Initial Purchaser or any officerperson controlling any Holder or Initial Purchaser, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 2 contracts
Sources: Registration Rights Agreement (Bradley Pharmaceuticals Inc), Registration Rights Agreement (Bradley Pharmaceuticals Inc)
Indemnification; Contribution. (a) Incident to any registration statement referred of any Registrable Securities pursuant to in this Section 9, and subject to applicable lawAgreement, the Company shall indemnify will indemnify, reimburse and hold harmless to the fullest extent permitted by law, each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees employees, representatives and agents of any of them them) (each, a "“Selling Holder"”), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934(each, as amended (hereinafter the "Exchange Act") (a "“Controlling Person")”), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigationinvestigative, legal and other expenses reasonably 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities or blue sky laws statutory law or any rule or regulation thereunder promulgated under the Securities Act, the Exchange Act or any state statutory law, (iv) any failure to register or qualify the Registrable Securities in connection with any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company (the undertaking of any underwriter chosen by the Company being attributed to the Company) will undertake such registrationregistration or qualification on the Selling Holder’s behalf (provided that in such instance the Company shall not be so liable if it has undertaken its commercially reasonable best efforts to so register or qualify the Registrable Securities), or (v) any blue sky application or other document executed by the Company specifically for the purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof; provided, however, that the Company shall will not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an untrue statement or omission of a material fact contained in such registration statement 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 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 shall will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and ), directors, officers, employees employees, representatives and agents of any of them) whose securities are so registered, and each person who controls Controlling Person of any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Actthem), 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 as a direct result of such untrue statement or omission or alleged untrue statement or omission in the information furnished in writing to the same extent Company by such Selling Holder expressly for use in such registration statement, provided in that the immediately preceding sentenceobligation of the Selling Holder will be several and not joint and several. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company5(a) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the net proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.65, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) in such proportion as is appropriate to reflect (i) the relative benefits received by the Company, the other Selling Holders and the underwriters from the offering of the Registrable Securities and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or 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 for registration under Section 3(a) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed solely 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Company and each Selling Holders and the underwriters agree Holder agrees that it would not be just and equitable if contribution pursuant to this Section 9.6(b5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b5(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the net proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. No person 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. The Selling Holder’s obligations pursuant to this Section 5(b) shall be several in proportion to the amount of Registrable Securities registered by it and not joint and several.
(dc) The amount required to be 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 9.6 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 9.6 shall 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person Controlling Person of the indemnified parties. Any indemnification No indemnifying party, in the defense of legal fees and costs pursuant to this Section 9.6 any such claim or litigation, shall be paid by enter into a consent of entry of any judgment or enter into a settlement without the indemnifying party when and as such fees and costs are incurred by consent of the indemnified party, which consent will not be unreasonably withheld.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person, from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such indemnified party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, as incurred, 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 any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, 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 Issuer Free Writing Prospectus or in any amendment or supplement thereto, in the light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the indemnified parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, however, that the Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action 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 furnished in writing by or on behalf of the Initial Purchasers or a Holder to the Company expressly for use in, any Shelf Registration Statement or any Prospectus or any Issuer Free Writing 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 Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a 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, expenses, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at common law or otherwise prior to the same extent written confirmation of the sale of such Registrable Securities 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 provided the Company had previously furnished 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 have to such indemnified party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company and its directors, officers, employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such 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 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 Company expressly for use in, any Shelf Registration Statement or Prospectus or Issuer Free Writing 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 Issuer Free Writing Prospectus or necessary to make such Holder Information not misleading; and, subject to the limitation set forth in the immediately preceding sentenceclause, each Holder shall reimburse, as incurred, the Company, as applicable, 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 the Company or any of its controlling persons. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such indemnified party or otherwise. Such indemnified party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the indemnified party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the indemnified parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 indemnified party, effect any settlement of any pending or threatened Proceeding in respect of which such indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 6(a) or Section 6(b), or insufficient to hold such indemnified party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) 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 Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters 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 Company, Company or by the Selling Holders or the underwriters Initial Purchasers and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerInitial Purchaser or any person controlling any Holder or any Initial Purchaser, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (United Dominion Realty Trust Inc)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including and its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees employees, members, representatives and agents of any of them (a "Selling Holder"), and each person person, if any, who controls any of them Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934(each, as amended (hereinafter the "Exchange Act") (a "Controlling PersonHolder Indemnified Party")), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several claim (including any the reasonable cost of 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), to ) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such lossesloss, claimsdamage, damages expense, liability or liabilities arise claim arises out of or are is based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary Shelf Registration Statement or definitive prospectus, Prospectus or in any amendment or supplement to such registration statement thereto or in any preliminary prospectus), (ii) or arises out of or is based upon any omission or alleged omission to state in such document a material fact required to be stated in it any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements in it therein not misleading, or (iii) arises out of or is based upon any violation by omission or alleged omission to state a material fact necessary in order to make the Company statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the Securities Actcircumstances under which they were made, not misleading, except insofar as any state securities or blue sky laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall not be liable to the extent that such loss, claim, damage, expense expense, liability or liability claim arises from and out of or is based on an upon any untrue statement or omission or alleged untrue statement or omission made in reliance on 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 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 arising from the sale of the Registrable Securities sold pursuant to the Shelf Registration Statement to any person by such underwriterHolder Indemnified Party if (i) that Holder Indemnified Party failed to send or give a copy of the Prospectus, Selling Holder as the same may be amended or Controlling Person expressly for use in such registration statement. With respect 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 untrue statement or omission to state a material fact in such preliminary prospectus was corrected in the information furnished Prospectus or a supplement or amendment thereto, as the case may be.
(b) Each Holder, severally and not jointly, agrees to the Company by such Selling Holder expressly for use in such registration statementindemnify, such Selling Holder shall indemnify defend and hold harmless each underwriterthe Company, the Company (including and its directors, officers, employees and agents)employees, each other Holder (including its partners (including partners of partners and stockholders of such partners) and directorsmembers, officers, employees representatives and agents of any of them) whose securities are so registered, and each person person, if any, who controls any of them 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") from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Company Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, insofar as such loss, damage, expense, liability or state statutory law claim arises out of or regulation, at common law is based upon any untrue statement or otherwise alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the same extent provided Company required to be included in any Shelf Registration Statement or the related Prospectus pursuant the Securities Act, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 immediately preceding sentence. In no eventlight of the circumstances under which they were made, not misleading, in connection with such information; provided, however, that no such Holder shall be liable for any claims hereunder in excess of the liability amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) If any action, suit or proceeding (each, a Selling Holder for indemnification under "Proceeding") is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 9.6(a6, such person (the "Indemnified Party") shall promptly notify the person against whom such indemnity may be sought (the "Indemnifying Party") in its capacity as such (and not in its capacity as an officer or director writing of the Company) exceed institution of such Proceeding and the lesser 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 it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may otherwise have than on account of this indemnity agreement. Such Indemnified Party shall have the right to employ its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) that proportion of the total of such lossesIndemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received 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 Indemnified Party or (iii) the 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 not, in connection with any Proceeding or related Proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Parties, and that all such Selling Holder 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. 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 sale consent if (i) such settlement is entered into more than 60 Business Days after receipt by the Indemnifying Party of Registrable Securities the aforesaid request, (ii) such indemnifying party shall not have reimbursed the Indemnified Party in accordance with such request prior to 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 of any pending or Founder Securitiesthreatened Proceeding in respect of which any Indemnified Party is a party, as unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the case may be) under subject matter of such registration statementProceeding.
(bd) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(bsubsection (d) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statementabove. 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 who was not found guilty of such fraudulent misrepresentation. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company's officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Interstate Bakeries Corp/De/)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a "HOLDER INDEMNIFIED PARTY"), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the same Company expressly for use therein, 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.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "COMPANY INDEMNIFIED PARTY") from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, 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 information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary 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 arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 immediately preceding sentencelight of the circumstances under which they were made, not misleading, in connection with such information. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company's officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Ligand Pharmaceuticals Inc)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person person, if any, who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") Holder (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, an "Indemnified Party"), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint claim or several, to action in respect thereof (including the reasonable cost of investigation) which they, such Indemnified Party may incur or any of them, may 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, however, that the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Holder or related Controlling Person (i) insofar as any such loss, damage, expense, liability, claim or action 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 furnished in writing by or on behalf of such Holder or related Controlling Person to the Company expressly for use in connection with any Shelf Registration Statement or Prospectus, (ii) 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, to the extent that a final Prospectus relating to such Registrable Securities was not delivered by such Holder, at common law or otherwise prior to the same extent provided written confirmation of the sale of such Registrable Securities, to the person asserting the claim from which such loss, damage, expense, liability, claim or action arises, a copy of the final Prospectus if the Company had previously furnished copies thereof to such Holder and the final Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission or (iii) if such untrue statement or alleged untrue statement, omission or alleged omission is corrected in an amendment or supplement to the final Prospectus and having been previously furnished by or on behalf of the Company with copies of the final Prospectus as so amended or supplemented, such Holder thereafter fails to deliver such Prospectus as so amended or supplemented, at or prior to the written confirmation of the sale of Registrable Securities to the person asserting the claim from which such loss, damage, expense, liability, claim or action arises. This indemnity agreement will be in addition to any liability which the Company may otherwise have to any Holder or any of its Controlling Persons.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Company Indemnified Party") from and against any loss, damage, expense, liability, claim or any action in respect thereof (including the reasonable cost of investigation) which such Company 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 any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding sentencethis 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party under this Section 6 except to the extent it is materially prejudiced thereby. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling Holders one hand and the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company or the Company's directors, employeeofficers, agent employees, representatives, agents or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a "Holder Indemnified Party"), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the same extent Company expressly for use therein; provided that the indemnification contained in the immediately preceding sentence. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a6(a) in its capacity as shall not inure to the benefit of any Holder (or to the benefit of any person controlling such (and not in its capacity as an officer or director Holder) on account of the Company) exceed the lesser of (i) that proportion of the total of any such losses, claims, damages or liabilities indemnified against equal caused by any untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus provided in each case the Company has performed its obligations under Section 3(a) hereof if either (A) (i) such Holder failed to that proportion send or deliver a copy of the total securities sold under such registration statement which is being sold Prospectus with or prior to the delivery of written confirmation of the sale by such Selling Holder to the person asserting the claim from which such losses, claims, damages or liabilities arise and (ii) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (B) (x) such untrue statement or alleged untrue statement, omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such Holder thereafter fails to deliver such Prospectus as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of a Registrable Security to the person asserting the claim from which such losses, claims, damages or liabilities arise.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Company Indemnified Party") from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, 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 information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 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 Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party hereunder to the extent such omission has not materially prejudiced (through the forfeiture of substantive rights or defenses) such Indemnifying Party. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party (x) unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or (y) such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice thereof or (z) 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such Proceeding). An Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, 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. 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company's officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Electronics for Imaging Inc)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the same extent provided Company expressly for use therein, including, without limitation, all information regarding such Holder and it affiliates included in the immediately preceding sentenceNotice and Questionnaire.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, 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 information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, including, without limitation, all information regarding such Holders and its affiliates included in the Notice and Questionnaire, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, in connection with such information. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Isis Pharmaceuticals Inc)
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall indemnify and hold harmless each underwriterthe Holders, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners their officers, directors and stockholders of any such partners))Members, and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act agent or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and investment adviser thereof against any and all losses, claims, damages, liabilities and expenses and liabilities, joint or several (including reasonable attorneys' fees and expenses) incurred by such party pursuant to any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any actual or threatened action, suit or suit, proceeding or any claim asserted), 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, insofar as such losses, claims, damages or liabilities arise investigation arising out of or are based on upon (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related Registration Statement, any Prospectus or preliminary or definitive prospectusProspectus, or any amendment or supplement to such registration statement any of the foregoing, or prospectus), (ii) any omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements therein (in it the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or (iii) any violation by the Company of the Securities Actare based upon, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall not be liable to 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 with respect to the Company by such underwriter, Selling Holder 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 Holders furnished to the Company by such Selling Holder the Holders or their counsel expressly for use in such registration statement, such Selling Holder shall indemnify and hold harmless each underwritertherein. In connection with an Underwritten Offering, the Company (including its directorsshall indemnify the underwriters thereof, their officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees directors and agents of any of them) whose securities are so registered, and each person Person who controls any of them 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 the Holders. Notwithstanding the foregoing provisions of this Section 13(a), from the Company shall not be liable to the Holders, 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 13 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Holders, or other Person on behalf of the Holders, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and namely furnished sufficient copies thereof to the Holders in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Holders shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Holders, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party's officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against any and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and liabilitiesexpenses) incurred by each such party pursuant to any actual or threatened action, joint suit, proceeding or severalinvestigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, to which theyany Prospectus or preliminary Prospectus, or any amendment or supplement to any of themthe foregoing, may become subject under or (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 a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Holders furnished to the Company or any underwriter by the Holders or their counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Holders shall not be liable to the Company, any underwriter, each such parties' officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Holders had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 13 (PROVIDED that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 13 except to the extent the indemnifying party shall have been actually 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 of the commencement thereof, the Exchange Act or other federal or state statutory law or regulationindemnifying party shall be entitled to participate therein and, at common law or otherwise to the same extent provided that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 13 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the 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 is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence. In no event, however, sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director reasonable satisfaction of the Company) exceed the lesser of (i) that proportion of the total of indemnified party its ability to finance such lossesdefense, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such Selling Holder from its sale counsel or materially prejudice the prosecution of Registrable Securities the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or Founder Securitiesregulatory counsel or firm of counsel) 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. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, as in the case may beof an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) under such registration statementof each indemnifying party.
(bd) If the indemnification from the indemnifying party provided for in this Section 9.6(a) above for any reason 13 is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses or liabilities referred to therein, then each the indemnifying party under this Section 9.6party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders indemnifying party and the underwriters indemnified party in connection with the statements or omissions actions which resulted in such losses, claims, damages, expenses or liabilitiesliabilities and expenses, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, the Selling Holders such indemnifying party and the underwriters 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 the Companyby, the Selling Holders such indemnifying party or the underwriters 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.
(cpayable 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 13(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The Company, the Selling Holders and the underwriters parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b13(d) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 13(d). Notwithstanding the immediately preceding paragraph. In provisions of this Section 13(d), no event, however, underwriter shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser 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 (i) that proportion 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 and the Holders shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Holders were offered to the public exceeds the amount of any damages which the Holders has otherwise been required to pay by reason of such losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. No person found 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 found guilty of such fraudulent misrepresentation. If indemnification is available under this Section 13, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 13(a) or Section 13(b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 13(d).
(de) The amount paid by an indemnifying party or payable to an indemnified party as a result provisions of the losses, claims, damages and liabilities referred to in this Section 9.6 13 shall be deemed in addition to include, subject any liability which any party may have to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending and shall survive any such action or claim, payable as the same are incurredtermination of this Agreement. The indemnification and contribution provided for by this Section 9.6 13 shall remain in full force and effect regardless irrespective of any investigation made by or on behalf of the an indemnified parties or any officerparty, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and so long as such fees and costs are incurred by the indemnified partyparty is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall indemnify and hold harmless each underwriterharmless, to the fullest extent permitted by law, each Holder in any offering or sale of Registrable Securities, each Person, if any, who offers or sells participates as an underwriter in any such offering and sale of Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder")Securities, and each person Person, if any, who controls any of them such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934and their respective directors, as amended (hereinafter the "Exchange Act") (a "Controlling Person"))trustees, from officers, partners, agents, employees and affiliates against any and all losses, claims, damages, liabilities and expenses and liabilities, joint or several (including any investigationreasonable attorneys' fees, legal disbursements and other expenses incurred in connection withexpenses, as incurred, and any amount amounts paid in any settlement ofeffected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit or suit, proceeding or any claim asserted), 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, insofar as such losses, claims, damages or liabilities arise investigation arising out of or are based on upon: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectusin, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document of a material fact required to be stated in it in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in it the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (iiiA) any violation by the Company of the Securities Act, any state securities such untrue statement or blue sky laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an alleged untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration statementregistration. With respect Notwithstanding the foregoing provisions of this Section 11(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 11(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in the information furnished an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Selling Holder expressly for use in or underwriter to the Person asserting the claim from which such registration statementLosses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party.
(b) In connection with any Registration Statement filed pursuant hereto, such Selling each Holder shall of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless each underwriterharmless, to the fullest extent permitted by law, the Company (including its directors, officers, employees and agents)Company, each other Holder (including its partners (including partners Person, if any, who participates as an underwriter in any offering and sale of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) whose securities are so registered, Registrable Securities and each person Person, if any, who controls any of them the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any and all lossesactual action, claimssuit, damages, expenses and liabilities, joint proceeding or several, to which theyinvestigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of them, may become subject under the Securities Acta material fact required to be stated in, the Exchange Act Registration Statement, Prospectus or other federal preliminary Prospectus or state statutory law any amendment or regulationsupplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, at common law or otherwise in the light of the circumstances then existing) not misleading, but only to the same extent provided that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the immediately preceding sentence. In no eventCompany by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the liability of a Selling Holder for indemnification Company or any other indemnified party under this Section 9.6(a11(b) with respect to any amount in its capacity as such (and not in its capacity as an officer or director excess of the Companyamount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement.
(c) exceed Any Person entitled to indemnification hereunder agrees to give prompt written notice to the lesser indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually and 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 of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, 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 legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) that proportion more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the total of such lossesRegistrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) more than one counsel for the proceeds received underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. 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 counsel for all parties indemnified by such Selling Holder from its sale indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or Founder Securities(iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the case may be) under giving by the claimant or plaintiff to such registration statementindemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 11. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party.
(bd) If the indemnification from the indemnifying party provided for in this Section 9.6(a) above for any reason 11 is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of to any losses, claims, damages, expenses or liabilities referred to thereinLosses, then each the indemnifying party under this Section 9.6party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) Losses 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 and Founder Securities, as applicable, 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, the other Selling Holders indemnifying party and the underwriters indemnified party in connection with the statements or omissions actions which resulted in such losses, claims, damages, expenses or liabilitiesLosses, as well as any other relevant equitable considerations. The relative benefits ; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds such Holder 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 sales of the Registrable Securities and Founder Securities, as applicableof the Holder under the applicable Registration Statement. The relative fault of the Company, the Selling Holders such indemnifying party and the underwriters indemnified party shall be determined by reference to, among other things, whether the any action in question, including any untrue statement 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 Companyby, the Selling Holders such indemnifying party or the underwriters 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.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined payable by pro rata or per capita allocation or by any other method of allocation which does not take account a party as a result of the equitable considerations Losses referred to above shall be deemed to include, subject to the limitations set forth in the immediately preceding paragraph. In no eventSection 11(c), however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages legal or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold other fees and expenses reasonably incurred by such Selling Holder indemnified party in connection with any investigation or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statementproceeding. No person found 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 found guilty of such fraudulent misrepresentation.
(d. The parties agree that it would not be just and equitable if contribution pursuant to this Section 11(d) The amount paid were determined by an indemnifying party pro rata allocation or payable to an indemnified party as a result by any other method of allocation that does not take into account the losses, claims, damages and liabilities consideration referred to in this Section 9.6 11(d). If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 11(a) or 11(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be deemed in addition to include, subject any liability which any indemnifying party may have 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 and shall survive the same are incurred. termination of this Agreement.
(f) The indemnification and contribution provided for required by this Section 9.6 11 shall remain in full force and effect regardless be made by periodic payments of the amount thereof during the course of any investigation made by action, suit, proceeding or on behalf of the indemnified parties investigation, as and when invoices are received or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs Losses are incurred by the indemnified partyincurred.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))Holder, and directorseach person, officersif any, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, however, that the Company shall not be required to provide any indemnify pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action 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 furnished 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, 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 the Registrable Securities concerned, to the extent that a 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 to such person, at common law or otherwise prior to the same extent 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 (i) this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party and (ii) this indemnity agreement will not apply to any loss, damage, expense, liability or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, in connection with such information, (ii) arises out of or is based upon a sale of Registrable Securities during a Suspension Period by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i) or (iii) arises out of or is based upon a sale of Registrable Securities by a Notice Holder without delivery of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(g) or Section 2(d)(i)(C); and, subject to the limitation set forth immediately preceding sentencethis 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent the Indemnifying Party is materially prejudiced thereby. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 liability by reason of such settlement. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders or the Initial Purchasers on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders or the Initial Purchasers on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and or the underwriters Initial Purchasers 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 Company, Company or by the Selling Holders or the underwriters Initial Purchasers and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchasers or any officerperson controlling any Holder or Initial Purchaser, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriterHolder of Registrable Securities, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))officers, and directors, officersmembers, partners, agents and employees and agents of any of them (a "Selling Holder"), and each person Person who controls any of them such Holder within the meaning of Section 15 of either the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), to the fullest extent permitted by applicable law, 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), actions to which they, they or any of them, 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, insofar as such losses, claims, damages damages, liabilities and expenses (or liabilities actions in respect thereof) arise out of or are based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectusa Registration Statement, 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 to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements therein (in it 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 (iii) any violation other expenses reasonably incurred by the Company of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder them in connection with investigating or defending any such registrationloss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company shall will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or liability arises from and is based on an upon any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made therein in reliance on upon and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder 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 written information furnished to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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 or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire (including, for the avoidance of them) whose securities are so registereddoubt, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicableExhibit B hereto), 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 out of the Company, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale sales of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(d) The amount paid by an indemnifying party or payable to an indemnified party as made during a result of the losses, claims, damages and liabilities referred to in this Section 9.6 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs Suspension Period after notice is given pursuant to this Section 9.6 shall 1(c) hereof. This indemnity clause will be paid by in addition to any liability which the indemnifying party when and as such fees and costs are incurred by the indemnified partyCompany may otherwise have.
Appears in 1 contract
Sources: Registration Rights Agreement (Sequential Brands Group, Inc.)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriterHolder of Registrable Securities, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))the Affiliates, and directors, officers, employees employees, members, managers and agents of any of them (a "Selling Holder"), each such Holder and each person Person who controls any of them such Holder within the meaning of Section 15 of either the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and 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 to which they or any claim asserted)of them may become subject insofar as such losses, to which theyclaims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a 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 themor are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and 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)(iii) 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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including a Registration Statement as originally filed or in any related preliminary or definitive prospectusamendment 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 to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements in it therein not misleading, to the extent, but only to the extent, that any such untrue statement or (iii) alleged untrue statement or omission or alleged omission is contained in any violation by written information relating to such Holder furnished to the Company by or on behalf of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registrationHolder specifically for inclusion therein; provided, however, that the Company 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. 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 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 extent 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 lossaction; 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, damageaction, expense suit or liability arises from and 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 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 consented to the Company by such underwriterindemnifying party, Selling Holder which consent shall not be unreasonably withheld. No indemnifying party, in the defense of any such claim or Controlling Person expressly for use litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise that does not include as an unconditional term thereof the giving by the claimant or plaintiff therein, to such indemnified party, of a full and final release from all liability in such registration statement. With respect to such untrue statement claim or omission litigation.
(d) In the event that the indemnity provided in Section 8(a) or alleged untrue statement Section 8(b) above is unavailable to or omission in the information furnished insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such aggregate losses, claims, damages and liabilities (including, without limitation, legal or liabilities indemnified against equal other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to that proportion of the total securities sold under which such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, indemnifying party on the one hand and by the indemnified party on the other Selling Holders and the underwriters from the offering of the Registrable Securities and Founder SecuritiesClass A Common Stock. If, as applicablehowever, or (ii) if the allocation provided by clause (i) above 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 the such relative benefits referred to in clause (i) above but also the relative fault of the Company, indemnifying party on the one hand and the indemnified party on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses damages or liabilitiesliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, indemnifying party on the Selling Holders one hand or the underwriters indemnified party on the other and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders and the underwriters parties agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or per capita allocation 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 9.6(b) in excess 8(d). The amount paid or payable by an indemnified party as a result of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal (or actions in respect thereof) referred to that proportion of the total securities sold under such registration statement which is being sold above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such Selling Holder indemnified party in connection with investigating or (ii) defending any such action or claim. Notwithstanding the proceeds received by such Selling Holder from its sale provisions of Registrable Securities or Founder Securitiesthis Section 8(d), as the case may be, under such registration statement. No person found 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 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).
(de) The amount paid by an indemnifying party or payable to an indemnified party as a result provisions of the losses, claims, damages and liabilities referred to in this Section 9.6 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 this Section 9.6 shall 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 indemnified parties Company or any officerof the officers, director, employee, agent directors or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant Persons referred to in this Section 9.6 shall be paid 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 when 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 as (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such fees and costs are incurred by seller from the indemnified partysale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Select Energy Services, Inc.)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))Holder, and directorseach person, officersif any, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action 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 furnished in writing by or on behalf of an Initial Purchaser or a Holder to the Company expressly for use therein and (ii) 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 the Registrable Securities concerned, to the extent that a 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 to such person, at common law or otherwise prior to the same extent 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 have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding sentencethis clause, each Holder shall reimburse 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securitiespursuant to the Shelf Registration Statement giving rise to such indemnification obligation, as absent fraud on the case may be) under part of such registration statementHolder.
(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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders or the Initial Purchasers on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders or the Initial Purchasers on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and or the underwriters Initial Purchasers 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 Company, Company or by the Selling Holders or the underwriters Initial Purchasers and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchasers or any officerperson controlling any Holder or Initial Purchaser, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Protein Design Labs Inc/De)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriterHolder of Registrable Securities, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))officers, and directors, officersmembers, partners, agents and employees and agents of any of them (a "Selling Holder"), and each person Person who controls any of them such Holder within the meaning of Section 15 of either the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), to the fullest extent permitted by applicable law, 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), actions to which they, they or any of them, 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, insofar as such losses, claims, damages damages, liabilities and expenses (or liabilities actions in respect thereof) arise out of or are based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectusa Registration Statement, 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 to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements therein (in it 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 (iii) any violation other expenses reasonably incurred by the Company of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder them in connection with investigating or defending any such registrationloss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company shall will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or liability arises from and is based on an upon any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made therein in reliance on upon and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder 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 written information furnished to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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 or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire (including, for the avoidance of them) whose securities are so registereddoubt, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicableExhibit B hereto), 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 out of the Company, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale sales of Registrable Securities made during a Pre-Effective Suspension Period or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(d) The 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 9.6 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs Suspension Period after notice is given pursuant to this Section 9.6 shall 1(a) and Section 1(d) hereof, respectively. This indemnity clause will be paid by in addition to any liability which the indemnifying party when and as such fees and costs are incurred by the indemnified partyCompany may otherwise have.
Appears in 1 contract
Sources: Registration Rights Agreement (Sequential Brands Group, Inc.)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the same extent Company expressly for use therein, provided that the foregoing indemnity shall not apply to any sales of Registrable Securities by a Holder if, in connection with such sale, such Holder fails to comply with the Prospectus delivery requirements under the Securities Act or initiates such sale during a Suspension Period.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, 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 information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 immediately preceding sentencelight of the circumstances under which they were made, not misleading, in connection with such information. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise unless, and only to the extent that, the Indemnifying Party is materially prejudiced thereby. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 reasonable fees and expenses of such counsel shall be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 reasonable 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 90 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterthe Initial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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 Initial Purchaser or any claim asserted), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, at common law however, that the Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or otherwise action 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 furnished in writing by or on behalf of the Initial Purchaser or a Holder to the same extent Company expressly for use in, any Shelf Registration Statement or any Prospectus; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 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 Company expressly for use 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 sentenceclause, 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) 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 Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 Purchaser, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters 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 Company, Company or by the Selling Holders or the underwriters Initial Purchaser and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchaser or any officerperson controlling any Holder or the Initial Purchaser, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company and each Guarantor agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Notice Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 Notice Holder 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Notice Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 light of the circumstances under which such statements were made, not misleading; provided, however, that the Company and the Guarantors shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action 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 furnished in writing by or on behalf of an Initial Purchaser or a Holder to the same extent Company expressly for use in, any Shelf Registration Statement or any Prospectus; provided further, however, that this indemnity agreement will be in addition to any liability which the immediately preceding sentenceCompany and the Guarantors may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, and each Guarantor, its directors, officers, employees and any person who controls the Company or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 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 Company expressly for use 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party, except to the extent that the indemnifying party has been prejudiced in any material respect by such failure through the forfeiture of substantive rights or defenses. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing all the Indemnified Parties). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, which consent shall not be unreasonably withheld or 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 of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the CompanyCompany and the Guarantors, on the one hand, and by the Holders or the Initial Purchasers, on the other Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 CompanyCompany and the Guarantors, on the one hand, and of the Holders or the Initial Purchasers, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters 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 Company, Company or Guarantors or by the Selling Holders or the underwriters Initial Purchasers and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, and each Guarantor, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchasers or any officerperson controlling any Holder or Initial Purchaser, directoror the Company or the Guarantors, employee, agent or controlling person the Company’s or any of the indemnified parties. Any indemnification Guarantors’ officers or directors or any person controlling the Company or any Guarantor and (iii) the sale of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall indemnify and hold harmless each underwriterharmless, to the fullest extent permitted by law, each Holder in any offering or sale of Registrable Common Shares, each Person, if any, who offers or sells participates as an underwriter in any such offering and sale of Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder")Common Shares, and each person Person, if any, who controls any of them such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934and their respective directors, as amended (hereinafter the "Exchange Act") (a "Controlling Person"))trustees, from officers, partners, agents, employees and affiliates against any and all losses, claims, damages, liabilities and expenses and liabilities, joint or several (including any investigationreasonable attorneys’ fees, legal disbursements and other expenses incurred in connection withexpenses, as incurred, and any amount amounts paid in any settlement ofeffected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) (collectively, “Losses”) incurred by such party pursuant to any actual or threatened action, suit or suit, proceeding or any claim asserted), 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, insofar as such losses, claims, damages or liabilities arise investigation arising out of or are based on upon: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectusin, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document of a material fact required to be stated in it in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in it the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (iiiA) any violation by the Company of the Securities Act, any state securities such untrue statement or blue sky laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an alleged untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration statementregistration. With respect Notwithstanding the foregoing provisions of this Section 8(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 8(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either: (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Common Shares by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission; or (ii) (A) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in the information furnished an amendment or supplement to the Prospectus and (B) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Common Shares by such Selling Holder expressly for use in or underwriter to the Person asserting the claim from which such registration statementLosses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Common Shares by such indemnified party.
(b) In connection with any Registration Statement filed pursuant to this Agreement, such Selling each Holder shall of Registrable Common Shares to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless each underwriterharmless, to the fullest extent permitted by law, the Company (including its directors, officers, employees and agents)Company, each other Holder (including its partners (including partners Person, if any, who participates as an underwriter in any offering and sale of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) whose securities are so registered, Registrable Common Shares and each person Person, if any, who controls any of them the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any and all lossesactual action, claimssuit, damages, expenses and liabilities, joint proceeding or several, to which theyinvestigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of them, may become subject under the Securities Acta material fact required to be stated in, the Exchange Act Registration Statement, Prospectus or other federal preliminary Prospectus or state statutory law any amendment or regulationsupplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, at common law or otherwise in the light of the circumstances then existing) not misleading, but only to the same extent provided that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the immediately preceding sentence. In no eventCompany by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the liability of a Selling Holder for indemnification Company or any other indemnified party under this Section 9.6(a11(b) with respect to any amount in its capacity as such (and not in its capacity as an officer or director excess of the Companyamount of the total net proceeds received by such Holder from sales of the Registrable Common Shares of such Holder under such Registration Statement.
(c) exceed Any Person entitled to indemnification hereunder agrees to give prompt written notice to the lesser indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 11 except to the extent the indemnifying party shall have been actually and 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 of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, 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 legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) that proportion more than one counsel for all Holders of Registrable Common Shares who are indemnified parties, selected by the Holders of a Majority of the total of such lossesRegistrable Common Shares who are indemnified parties (which selection shall be reasonably satisfactory to the Company), claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) more than one counsel for the proceeds received underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. 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 counsel for all parties indemnified by such Selling Holder from its sale indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities Common Shares who are indemnified parties, selected by the Holders of a Majority of the Registrable Common Shares who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or Founder Securities(iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the case may be) under giving by the claimant or plaintiff to such registration statementindemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 11. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party.
(bd) If the indemnification from the indemnifying party provided for in this Section 9.6(a) above for any reason 11 is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of to any losses, claims, damages, expenses or liabilities referred to thereinLosses, then each the indemnifying party under this Section 9.6party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) Losses 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 and Founder Securities, as applicable, 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, the other Selling Holders indemnifying party and the underwriters indemnified party in connection with the statements or omissions actions which resulted in such losses, claims, damages, expenses or liabilitiesLosses, as well as any other relevant equitable considerations. The relative benefits ; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds such Holder 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 sales of the Registrable Securities and Founder Securities, as applicableCommon Shares of the Holder under the applicable Registration Statement. The relative fault of the Company, the Selling Holders such indemnifying party and the underwriters indemnified party shall be determined by reference to, among other things, whether the any action in question, including any untrue statement 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 Companyby, the Selling Holders such indemnifying party or the underwriters 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.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined payable by pro rata or per capita allocation or by any other method of allocation which does not take account a party as a result of the equitable considerations Losses referred to above shall be deemed to include, subject to the limitations set forth in the immediately preceding paragraph. In no eventSection 11(c), however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages legal or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold other fees and expenses reasonably incurred by such Selling Holder indemnified party in connection with any investigation or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statementproceeding. No person found 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 found guilty of such fraudulent misrepresentation.
(d. The parties agree that it would not be just and equitable if contribution pursuant to this Section 11(d) The amount paid were determined by an indemnifying party pro rata allocation or payable to an indemnified party as a result by any other method of allocation that does not take into account the losses, claims, damages and liabilities consideration referred to in this Section 9.6 11(d). If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 11(a) or 11(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 11(d).
(e) The provisions of this Section 11 shall be deemed in addition to include, subject any liability which any indemnifying party may have 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 and shall survive the same are incurred. termination of this Agreement.
(f) The indemnification and contribution provided for required by this Section 9.6 11 shall remain in full force and effect regardless be made by periodic payments of the amount thereof during the course of any investigation made by action, suit, proceeding or on behalf of the indemnified parties investigation, as and when invoices are received or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs Losses are incurred by the indemnified partyincurred.
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred of any Registrable Securities under the Securities Act pursuant to in this Section 9, and subject to applicable lawAgreement, the Company shall will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees employees, representatives and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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, 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), ) or (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall will not be liable to 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 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 shall will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees employees, representatives and agents of any of them) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company5(a) exceed the lesser of (i) that proportion of the total of such selling Holder's pro rata share for such losses, claims, damages or damages, expenses and liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the net proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.65, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or 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 3(a) 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders Holders, and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b5(b) in excess of the lesser of (i) that proportion of the total of such selling Holder's pro rata share for such losses, claims, damages or damages, expenses and liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the net proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(dc) The 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 9.6 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 9.6 shall 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification No indemnifying party, in the defense of legal fees and costs pursuant to this Section 9.6 any such claim or litigation, shall be paid by enter into a consent of entry of any judgment or enter into a settlement without the indemnifying party when and as such fees and costs are incurred by consent of the indemnified party, which consent will not be unreasonably withheld.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))Holder, and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all lossesif any, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them Initial Purchaser or Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person (each, an "Indemnified Party"), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, at common law however, that the Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or otherwise action 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 furnished in writing by or on behalf of an Initial Purchaser or a Holder to the same extent 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, however, that this indemnity agreement will (A) be in addition to any liability which the Company may otherwise have to such Indemnified Party and (B) not apply to any loss, damage, expense, liability or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Company Indemnified Party") from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 (A) 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 Company expressly for use in, any Shelf Registration Statement or Prospectus, or in any amendment or supplement thereto, 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 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 in or with respect to which such Holder is named as a selling security holder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(i), 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(g) or Section 2(d)(i)(C); and, subject to the limitation set forth in the immediately preceding sentenceclause, 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 failure to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent such failure to notify materially prejudices such Indemnifying Party. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) 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 Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters 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 Company, Company or by the Selling Holders or the underwriters Initial Purchasers and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters each Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerInitial Purchaser or any person controlling any Holder or Initial Purchaser, directoror the Company, employee, agent or the Company's officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Antigenics Inc /De/)
Indemnification; Contribution. (a) Incident Agilent and World Trade jointly and severally agree to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriter▇▇▇▇▇▇▇ ▇▇▇▇▇ and its affiliates, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees employees, agents and agents of any of them controlling persons (a "Selling Holder"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ and each such other person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act"being an “Indemnified Party”) (a "Controlling Person")), from and against any and all losses, claims, damages, expenses damages and liabilities, joint or several (including several, to which such Indemnified Party becomes subject under any investigationapplicable law, legal and other expenses incurred or otherwise related to or arising out of or in connection withwith (a) any transaction contemplated by this Agreement, and (b) any amount paid untrue statement or alleged untrue statement of a material fact contained in settlement of, any action, suit information (whether oral or proceeding written) or documents furnished or made available by World Trade or Agilent or any claim assertedof their affiliates in connection with any transaction contemplated pursuant to this Agreement or the omission or the alleged omission to state therein a material fact necessary in order to make the statements therein not misleading, in light of the circumstances under which they were made; provided, however, that neither Agilent nor World Trade shall be liable, in the case of this clause (b), to which they, or the extent that 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any such untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission made therein in reliance upon and in conformity with written information relating to state ▇▇▇▇▇▇▇ ▇▇▇▇▇ (or the relevant affiliate thereof) furnished to Agilent or World Trade by ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use therein. In no event shall Agilent or World Trade be liable for fees and expenses of more than one counsel (in such document a material fact required addition to be stated in it or necessary to make the statements in it not misleading, or (iiiany local counsel) any violation by the Company of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder separate from their own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Agilent and World Trade jointly and severally agree to promptly reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising from any of the matters referred to in the preceding sentence, whether or not such registration; providedIndemnified Party is a party and whether or not such claim, however, that action or proceeding is initiated or brought by or on behalf of World Trade or Agilent or the Company relevant issuer or whether or not resulting in any liability. Neither Agilent nor World Trade shall not be liable for any settlement of any proceeding effected without its written consent, 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 such 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 liability arises from willful misconduct. If the indemnification of an Indemnified Party provided for in this Agreement is for any reason held unenforceable, Agilent and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on World Trade jointly and in conformity with information furnished in writing severally agree to contribute to the Company by such underwriter, Selling Holder 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under for which such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities unenforceable (ia) in such proportion as is appropriate to reflect the relative benefits received by to World Trade and Agilent, on the Companyone hand, and ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the other Selling Holders and the underwriters from the offering hand, of the Registrable Securities and Founder Securities, as applicablerelevant transaction contemplated pursuant to this Agreement, or (iib) if (but only if) the allocation provided by for in clause (ia) above is not permitted for any reason prohibited by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (ia) above but also World Trade and Agilent’s relative fault, on the one hand, and the relative fault of the Company▇▇▇▇▇▇▇ ▇▇▇▇▇, on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilitieshand, 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 benefits received by to World Trade and Agilent, on the Companyone hand, and to ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Selling Holders and the underwriters other hand, shall be deemed to be in the same respective proportions proportion that the net proceeds from the offering (before deducting expenses) total value received or contemplated to be received by the Company and the Selling Holders and the underwriting discount received by the underwriters, World Trade and/or Agilent 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution any transactions contemplated pursuant to this Section 9.6(b) were determined by pro rata Agreement bears to the fees paid or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no eventbe paid to ▇▇▇▇▇▇▇ ▇▇▇▇▇ with respect to such transaction; provided, however, that, to the extent permitted by applicable law, in no event shall a Selling Holder the Indemnified Parties be required to contribute any in respect of a specific transaction an aggregate amount under this Section 9.6(b) in excess of the lesser of (i) fees actually paid in such transaction to ▇▇▇▇▇▇▇ ▇▇▇▇▇. The foregoing contribution agreement shall be in addition to any rights that proportion of the total of such losses, claims, damages any Indemnified Party may have at common law or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statementotherwise. No person found guilty of fraudulent misrepresentation (within investigation or failure to investigate by any Indemnified Party shall impair the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
(d) The 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 9.6 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 foregoing indemnification and contribution provided for this Section 9.6 shall remain in full force agreement or any other right an Indemnified Party may have. Agilent and effect regardless 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 investigation made 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 indemnified parties 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 officerof its subsidiaries or affiliates in which such Indemnified Party is not named as a defendant, directorWorld Trade and Agilent agree to reimburse such Indemnified Party for all reasonable expenses incurred by it in connection with such Indemnified Party’s appearing and preparing to appear as such a witness, employeeincluding, agent or controlling person of without limitation, the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified partyexpenses of its legal counsel.
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall indemnify and hold harmless each underwriterharmless, to the fullest extent permitted by law, each Holder in any offering or sale of Registrable Securities, each Person, if any, who offers or sells participates as an underwriter in any such offering and sale of Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder")Securities, and each person Person, if any, who controls any of them such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934and their respective directors, as amended (hereinafter the "Exchange Act") (a "Controlling Person"))trustees, from officers, partners, agents, employees and affiliates against any and all losses, claims, damages, liabilities and expenses and liabilities, joint or several (including any investigationreasonable attorneys' fees, legal disbursements and other expenses incurred in connection withexpenses, as incurred, and any amount amounts paid in any settlement ofeffected with the Company's consent, which consent shall not be unreasonably withheld or delayed) (collectively, "Losses") incurred by such party pursuant to any actual or threatened action, suit or suit, proceeding or any claim asserted), 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, insofar as such losses, claims, damages or liabilities arise investigation arising out of or are based on upon: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectusin, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document of a material fact required to be stated in it in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in it the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (iiiA) any violation by the Company of the Securities Act, any state securities such untrue statement or blue sky laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an alleged untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration statementregistration. With respect Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in the information furnished an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Selling Holder expressly for use in or underwriter to the Person asserting the claim from which such registration statementLosses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party.
(b) In connection with any Registration Statement filed pursuant hereto, such Selling each Holder shall of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless each underwriterharmless, to the fullest extent permitted by law, the Company (including its directors, officers, employees and agents)Company, each other Holder (including its partners (including partners Person, if any, who participates as an underwriter in any offering and sale of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) whose securities are so registered, Registrable Securities and each person Person, if any, who controls any of them the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and their respective directors, trustees, officers, partners, agents, employees and affiliates, 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 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold Losses incurred by such Selling Holder party pursuant to any actual action, suit, proceeding or (ii) the proceeds received by such Selling Holder from its sale investigation arising out of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for based upon any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 contained in, or the any omission or alleged omission to state of a material fact relates required to information supplied by the Companybe stated in, the Selling Holders Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the underwriters and foregoing or necessary to make the parties' relative intentstatements therein (in case of a Prospectus or preliminary Prospectus, knowledgein the light of the circumstances then existing) not misleading, access but only to information and opportunity to correct or prevent the extent that any such untrue statement or omissionomission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the Company or any other indemnified party under this Section 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement.
(c) The CompanyAny Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, the Selling Holders and the underwriters agree that it would not be just and equitable if suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 9.6(b) were determined by pro rata or per capita allocation or by any other method Agreement, provided that failure to give such notification shall not affect the obligations of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(d) The 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 9.6 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.pursuant to this
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9Article IV, and subject to applicable law, the Company shall will indemnify and hold harmless each underwriter, each Holder underwriter or Investor who offers or sells any such Registrable Securities or Founder Securities Shares in connection with such registration statement (including a "Selling Stockholder") (and in each case its partners (including partners of partners and stockholders of any such partners)), ) and directors, officers, employees and agents of any of them (a "Selling Holder"), them) and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading, or (iii) any violation by the Company of the Securities Act, any state securities or "blue sky sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall will not be liable to 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 Stockholder or Controlling Person expressly for use in such registration statementstatement or any willful or knowing violation of applicable securities laws. 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 Stockholder expressly for use in such registration statement, such Selling Holder shall Stockholder will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other Holder Investor (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder Stockholder for indemnification under this Section 9.6(a4.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that the proportion of the total securities sold under such registration statement which is being sold by such Selling Holder Stockholder or (ii) the proceeds received by such Selling Holder Stockholder from its sale of Registrable Securities (or Founder Securities, as the case may be) Shares under such registration statement.
(b) If the indemnification provided for in Section 9.6(a4.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.64.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the indemnified party, the other Selling Holders Stockholders and the underwriters from the offering of the Registrable Securities and Founder Securities, as applicable, Shares 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, the other Selling Holders Stockholders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders 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 and the Selling Holders 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 and Founder Securities, as applicableShares. The relative fault of the Company, the Selling Holders 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 a material fact relates to information supplied by the Company, the Selling Holders Stockholders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders Stockholders, and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b4.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder Stockholder or any related indemnified party be required to contribute any amount under this Section 9.6(b4.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that the proportion of the total securities Registrable Shares sold under such registration statement which is are being sold by such Selling Holder Stockholder or (ii) the proceeds received by such Selling Holder Stockholder from its sale of Registrable Securities or Founder Securities, as the case may be, Shares under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(dc) The 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 9.6 4.6 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 9.6 shall 4.6 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. .
(d) Any person entitled to indemnification of legal fees and costs pursuant hereunder will (i) give prompt written notice to this Section 9.6 shall be paid by the indemnifying party when of any claim with respect to which it seeks indemnification, but the failure to do so shall not relieve the indemnifying party from any liability, except to the extent it is actually prejudiced by the failure or delay in giving such notice, and as (ii) unless in such fees indemnified party's reasonable judgment a conflict of interest between such indemnified and costs are incurred indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party.party without its consent (but such consent will not be unreasonably
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall will indemnify and hold harmless each underwriterholder of Warrant Stock registered pursuant to this Agreement with the Commission, or under any blue sky law or regulation, against any losses, claims, damages or liabilities, joint or several, to which such holder may become subject under the Act or otherwise, but only to the extent that such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, registration statement, prospectus or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Holder who offers such holder for any legal or sells any other expenses reasonably incurred by such Registrable Securities or Founder Securities holder in connection with such registration statement (including its partners (including partners of partners and stockholders of investigating or defending any such partners))action or claim; 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 such document, in reliance upon and directors, officers, employees in conformity with written information furnished to the Company by any holder expressly for use therein.
(b) Each holder of Common Stock registered pursuant to this Agreement will indemnify and agents of any of them (a "Selling Holder"), and each person who controls any of them within hold harmless the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and Company against any and all losses, claims, damages, expenses and liabilities, joint damages 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), liabilities to which they, or any of them, the Company may become subject subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based on (i) any upon an untrue statement or alleged untrue statement of a material fact contained in such any preliminary prospectus, registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements in it therein not misleading, or (iii) any violation by in each case to the Company of extent, but only to the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registration; provided, howeverextent, that the Company shall not be liable to the extent that such loss, claim, damage, expense untrue statement or liability arises from and is based on an alleged untrue statement or omission or alleged untrue statement or omission was made in any such document, in reliance on upon and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder 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 written information furnished to the Company by such Selling Holder holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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 theytherein, or in a document to be filed with the Commission 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 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statementcommission.
(c) Promptly after receipt by an indemnified party under subsections (a) or (b) of this Section 16 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under either such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under either of such subsections. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to assume the defense thereof by notice in writing to the indemnified party. After receipt of written notice from the indemnifying party to such indemnified party of its election to 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, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation incurred prior to the assumption by the indemnifying party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 16 is held by a court of competent jurisdiction unavailable or insufficient to be unavailable to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages, expenses damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses damages or liabilities (ior actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company, the other Selling Holders Company and the underwriters holder or holders from this Agreement and from the offering of the Registrable Securities and Founder Securitiesshares of Warrant Stock. If, as applicablehowever, or (ii) if the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable lawlaw 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 the such relative benefits referred to in clause (i) above but also the relative fault of the Company, the other Selling Holders Company and the underwriters holders in connection with the statements or omissions which resulted in such losses, claims, damages, expenses damages or liabilitiesliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, the Selling Holders Company or the underwriters holder and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders Company and the underwriters holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(bsubparagraph (d) were determined by pro rata or per capita allocation (even if the 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 the immediately preceding paragraphthis subparagraph (d). In no event, however, shall a Selling Holder be required to contribute any amount under Except as provided in subparagraph (c) of this Section 9.6(b) in excess of 16, the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(d) The amount paid by an indemnifying party or payable to by an indemnified party as a result of the losses, claims, damages and or liabilities (or actions in respect thereof) referred to above in this Section 9.6 subparagraph (d) shall be deemed to include, subject to the limitations set forth above, include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any provision in this subparagraph (d) to the contrary, payable as no holder shall be liable for any amount, in the same are incurred. 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 indemnification and contribution provided for obligations of the Company under this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 16 shall be paid by in addition to any liability which the indemnifying party when and as such fees and costs are incurred by the indemnified partyCompany may otherwise have at law or in equity.
Appears in 1 contract
Sources: Warrant Purchase Agreement (Parallel Petroleum Corp)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a "Holder Indemnified Party"), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the same extent provided in the immediately preceding sentence. In no eventCompany expressly for use therein; 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 of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director action arising from the sale of the Company) exceed Registrable Securities sold pursuant to the lesser of Shelf Registration Statement to any person by such Holder Indemnified Party if (i) that proportion Holder Indemnified Party failed to send or give a copy of the total of such lossesProspectus, claimsas the same may be amended or supplemented, damages or liabilities indemnified against equal to that proportion person within the time required by the Securities Act (other than as a result of a failure by the Company to deliver copies of the total securities sold under Prospectus to such registration statement which is being sold by such Selling Holder or Indemnified Party) and (ii) the proceeds received by untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact in such Selling Holder from its sale of Registrable Securities (preliminary prospectus was corrected in the Prospectus or Founder Securitiesa supplement or amendment thereto, as the case may be) under such registration statement.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Company Indemnified Party") from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, 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 information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 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 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 75 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company's officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Cooper Companies Inc)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriterSecurityholder, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))Affiliates, and directors, officers, employees employees, members, managers and agents of any of them (a "Selling Holder"), and each person Person who controls any of them Securityholder within the meaning of Section 15 of either the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), to the fullest extent permitted by Applicable Law, from and against any and all losses, claims, damages, liabilities, expenses and liabilities, joint or several actions (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), “Losses”) to which they, they or any of them, 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, insofar as such losses, claims, damages or liabilities Losses arise out of or are based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including a Registration Statement as originally filed or in any related preliminary amendment thereof, or definitive prospectusthe 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 to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements therein (in it 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 (iii) any violation other expenses reasonably incurred by the Company of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder them in connection with investigating or defending any such registrationLosses or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company shall will not be liable in any case to the extent that any such loss, claim, damage, expense Losses arise (i) out of or liability arises from and is based on an upon any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made therein in reliance on upon and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder Information 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 other written information furnished to the Company by such Selling Holder expressly or on behalf of any Securityholder specifically for use inclusion therein, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 4.08(d) hereof. This indemnity clause will be in such registration statement, such Selling Holder shall addition to any liability which the Company may otherwise have.
(b) Each IFC Party severally (and not jointly) agrees to indemnify and hold harmless each underwriter, the Company (including and each of its Affiliates, directors, officersemployees, employees and agents)members, each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees managers and agents of any of them) whose securities are so registered, and each person Person who controls any of them the Company within the meaning of Section 15 of either 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, expenses and liabilities, joint or several, Losses to which theythey or any of them may become subject insofar as such Losses arise out of or are based 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 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 themthe circumstances under which they were made) not misleading, 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 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 IFC Party furnished to the Company by or on behalf of such IFC Party specifically for inclusion in the immediately preceding sentence. In no eventdocuments referred to in the foregoing indemnity; provided, however, that the total amount to be indemnified by such IFC Party pursuant to this Section 4.11(b) shall be limited to the net proceeds (after deducting broker’s commissions) received by such IFC Party in the offering to which such Registration Statement, Disclosure Package, Prospectus or Free Writing Prospectus relates. This indemnity clause will be in addition to any liability of a Selling Holder for indemnification which any such IFC Party may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director 4.11 of notice of the Company) exceed the lesser commencement of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party action in respect of any lossesa Loss, claimssuch indemnified party will, damages, expenses or liabilities referred if a claim in respect thereof is to therein, then each be made against the indemnifying party under this Section 9.64.11, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (A) will not relieve it from liability under subparagraph (i) or (ii) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses; and (B) will not, in lieu of any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in subparagraph (i) or (ii) 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 thereunder(who shall not, shall contribute except with the consent of the indemnified party, be counsel to the amount paid 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 payable 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), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (A) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (B) 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; (C) 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 (D) 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 parties 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 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 (A) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such 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 lossesindemnified party will be indemnified hereunder and (C) does not include any statement as to or any admission of fault, claimsculpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 4.11(a), damagesSection 4.11(b) and Section 4.11(c) above is unavailable to or insufficient to hold harmless an indemnified party with respect to any Loss referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate Losses (including legal or other expenses reasonably incurred in connection with investigating or liabilities (idefending same) 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 and Founder Securities, as applicable, 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, indemnifying party on the one hand and the indemnified party on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses Losses (or liabilitiesactions in respect thereof), as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, indemnifying party on the Selling Holders one hand or the underwriters indemnified party on the other and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders and the underwriters parties agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b4.11(d) were determined by pro rata allocation (even if the IFC Parties or per capita allocation any agents 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 9.6(b) in excess 4.11(d). The amount paid or payable by an indemnified party as a result of the lesser of Losses (ior actions in respect thereof) that proportion of the total of such losses, claims, damages referred to above in this Section 4.11(d) shall be deemed to include any legal or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold other expenses reasonably incurred by such Selling Holder indemnified party in connection with investigating or (ii) defending any such action or claim. Notwithstanding the proceeds received by such Selling Holder from its sale provisions of Registrable Securities or Founder Securitiesthis Section 4.11(d), as the case may be, under such registration statement. No person found 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 Person who was not found guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 4.11(d), each Person who controls any IFC Party or agent within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any IFC Party or agent shall have the same rights to contribution as such IFC Party or agent, 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 4.11(d).
(de) The amount paid by an indemnifying party or payable to an indemnified party as a result provisions of the losses, claims, damages and liabilities referred to in this Section 9.6 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 this Section 9.6 shall 4.11 will remain in full force and effect effect, regardless of any investigation made by or on behalf of any IFC Party or the indemnified parties Company or any officerof the officers, director, employee, agent directors or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant Persons referred to in this Section 9.6 shall be paid by 4.11, and will survive the indemnifying party when and as such fees and costs are incurred by the indemnified partytransfer of Registrable Securities.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, at common law however, that the Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or otherwise action 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 furnished in writing by or on behalf of an Initial Purchaser or a Holder to the same extent Company expressly for use in, any Shelf Registration Statement or any Prospectus; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 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 Company expressly for use 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 sentenceclause, 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) 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 Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters 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 Company, Company or by the Selling Holders or the underwriters Initial Purchasers and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchasers or any officerperson controlling any Holder or Initial Purchaser, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Notice Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 Notice Holder 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a "Holder Indemnified Party"), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 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 in conformity with information furnished in writing by or on behalf of any Notice Holder or any person, if any, who controls a Notice Holder to the same extent Company expressly for use therein and except that this indemnity agreement shall not apply to any loss, damage, expense, liability or claim (1) arising from an offer or sale by a Notice Holder of Registrable Securities occurring during a Suspension Period, if the indemnified party is a Notice Holder that received from the Company a Deferral Notice prior to the making of such offer or sale or (2) the Notice Holder fails to deliver at or prior to written confirmation of sale, the most recent Prospectus, as amended or supplemented, and such Prospectus, as amended or supplemented, would have corrected such untrue statement or omission or alleged untrue statement or omission of a material fact and the Company had previously provided to such Notice Holder such most recent Prospectus, as amended or supplemented, in a timely manner and in requisite quantities so as to timely permit such delivery by the Notice Holder.
(b) Each Notice Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Company Indemnified Party") from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, 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 information furnished in writing by or on behalf of such Notice Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 immediately preceding sentencelight of the circumstances under which they were made, not misleading, in connection with such information. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party 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 Agreement. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within 60 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 liability by reason of such settlement. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company's officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident Indemnification by the Company. The Company shall, without ------------------------------ limitation as to any registration statement referred to in this Section 9time, and subject to applicable law, the Company shall indemnify and hold harmless each underwriterharmless, to the full extent permitted by law, each Holder who offers or sells any such holder of Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))Securities, and the officers, directors, officers, agents and employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 or Controlling each 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them each such holder (within the meaning of 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 Party"), ----------------- to the fullest extent lawful, from and against any and all losses, claims, damages, expenses and liabilities, joint actions or severalproceedings (whether commenced or threatened) reasonable costs (including, to which theywithout limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (including reasonable expenses of investigation) (collectively, "Losses"), as incurred, arising out of ------ 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 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of based upon (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 contained in any Registration Statement, prospectus or the form of prospectus or in any amendment or supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state of a material fact relates required to be stated therein or necessary to make the statements therein not misleading, except to the extent that the same arise out of or are based upon information supplied furnished in writing to the Company by the Company, the Selling Holders such Indemnified Party or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined by pro rata or per capita allocation or by any other method related holder of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder Registrable Securities expressly for use therein or (ii) any violation by the proceeds received Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such Selling Holder from its registration; provided, 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 Founder Securitiesany other Person, as the case may beif any, under who controls such registration statement. No person found guilty of fraudulent misrepresentation (underwriters within the meaning of Section 11(fthe Securities Act to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (i) such Person failed to send or deliver a copy of the Securities Act) shall be entitled prospectus with or prior to contribution from any person who was not found guilty the delivery of such fraudulent misrepresentation.
(d) The amount paid by an indemnifying party or payable to an indemnified party as a result written confirmation of the losses, claims, damages and liabilities referred to in this Section 9.6 shall be deemed to include, subject sale by such Person to the limitations set forth abovePerson asserting the claim from which such Losses arise, any legal (ii) the prospectus would have corrected such untrue statement or other alleged untrue statement or such omission or alleged omission, and (iii) the Company has complied with its obligations under Section 5.4(c). Each -------------- indemnity and reimbursement of costs and 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))Holder, and directorseach person, officersif any, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (a "Controlling Person") and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person (each, an "Indemnified Party"), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, however, that the Company shall not be required to provide any indemnify pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action 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 furnished in writing by or on behalf of an Initial Purchaser or a Holder to the Company expressly for use therein; 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 the Registrable Securities concerned, to the extent that a 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 to such person, at common law or otherwise prior to the same extent 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 have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Company Indemnified Party") from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding sentencethis 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders or the Initial Purchasers on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders or the Initial Purchasers on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and or the underwriters Initial Purchasers 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 Company, Company or by the Selling Holders or the underwriters Initial Purchasers and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchasers or any officerperson controlling any Holder or Initial Purchaser, directoror the Company, employee, agent or the Company's officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person Person, if any, who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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, liabilities and expenses (including reasonable attorneys' fees, disbursements and liabilitiesexpenses, joint as incurred) (collectively, "Losses") incurred by ------ such party pursuant to any actual or severalthreatened action, to which theysuit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of them, may become subject under the Securities Acta material fact required to be stated in, the Exchange Act Registration Statement, Prospectus or other federal preliminary Prospectus or state statutory law any amendment or regulation, at common law supplement to any of the foregoing or otherwise necessary to make the same extent provided statements therein (in the immediately preceding sentence. In no event, however, shall the liability case of a Selling Holder for indemnification under this Section 9.6(aProspectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in its capacity each case insofar as such (and not in its capacity as an officer statements or director omissions arise out of the Company) exceed the lesser of or are based upon (i) that proportion any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel expressly for use therein, (ii) the use of any Prospectus after such time as the obligation of the total Company to keep effective the Registration Statement of which such lossesProspectus forms a part has expired or (iii) the use of any Prospectus after such time as the Company has advised such Holder that the filing of an amendment or supplement thereto is required, claimsexcept such Prospectus as so amended or supplemented. Notwithstanding the foregoing provisions of this Section 7(a), damages the Company shall not be liable to any Holder or liabilities indemnified against equal to that proportion any Person who controls such Holder (within the meaning of Section 15 of the total securities sold Securities Act or Section 20 of the Exchange Act) under the indemnity agreement in this Section 7(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either (i) (A) such registration statement which is being sold Holder failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Selling Holder to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (ii) (x) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in an amendment or supplement to the proceeds received Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such Selling Holder from its thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities (or Founder Securities, as by such Holder to the case may be) under Person asserting the claim from which such registration statementLosses arise.
(b) In connection with any Registration Statement filed pursuant hereto, each Holder of Registrable Securities to be covered thereby shall indemnify and hold harmless the Company, its directors and officers, and each Person, if any, who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and all other Holders against all Losses incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of a material fact required to be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, in the light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such Holder or its counsel specifically for use therein; provided, however, that the liability of each Holder hereunder shall be limited to the proportion of any such Losses that is equal to the proportion that the net proceeds from the sale of Registrable Securities sold by such Holder under such Registration Statement bears to the total net proceeds from the sale of all securities sold thereunder, but not in any event to exceed the net proceeds received by such Holder from the sale of Registrable Securities covered by such Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 7 except to the extent the indemnifying party shall have been actually 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 of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, 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 legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. 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 counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the written opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement 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 in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 7. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party.
(d) If the indemnification from the indemnifying party provided for in this Section 9.6(a) above for any reason 7 is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of to any losses, claims, damages, expenses or liabilities referred to thereinLosses, then each the indemnifying party under this Section 9.6party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) Losses 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 and Founder Securities, as applicable, 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, the other Selling Holders indemnifying party and the underwriters indemnified party in connection with the statements or omissions actions which resulted in such losses, claims, damages, expenses or liabilitiesLosses, as well as any other relevant equitable considerations. The relative benefits received by ; provided, however, that the Company, the Selling Holders and the underwriters liability of each Holder hereunder shall be deemed limited to be in the same respective proportions proportion of any such Losses that is equal to the proportion that the net proceeds from the offering (before deducting expenses) sale of Registrable Securities sold by such Holder under a Registration Statement bears to the total net proceeds from the sale of all securities sold thereunder, but not in any event to exceed the net proceeds received by such Holder from 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 sale of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities and Founder Securities, as applicablecovered by such Registration Statement. The relative fault of the Company, the Selling Holders such indemnifying party and the underwriters indemnified party shall be determined by reference to, among other things, whether the any action in question, including any untrue statement 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 Companyby, the Selling Holders such indemnifying party or the underwriters 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.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined payable by pro rata or per capita allocation or by any other method of allocation which does not take account a party as a result of the equitable considerations Losses referred to above shall be deemed to include, subject to the limitations set forth in the immediately preceding paragraph. In no eventSection 7(c), however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages legal or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold other fees and expenses reasonably incurred by such Selling Holder indemnified party in connection with any investigation or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statementproceeding. No person found 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 found guilty of such fraudulent misrepresentation.
(d. The parties agree that it would not be just and equitable if contribution pursuant to this Section 7(d) The amount paid were determined by an indemnifying party pro rata allocation or payable to an indemnified party as a result by any other method of allocation that does not take into account the losses, claims, damages and liabilities consideration referred to in this Section 9.6 7(d). If indemnification is available under this Section 7, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 7(a) or 7(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 7(d).
(e) The provisions of this Section 7 shall be deemed in addition to include, subject any liability which any indemnifying party may have 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 and shall survive the same are incurred. The indemnification and contribution provided for termination of this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified partyAgreement.
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9Article II, and subject to applicable law, the Company shall will, subject to the terms of the Intercreditor and Subordination Agreement, indemnify and hold harmless each underwriter, each Holder Investor who offers or sells holds any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such respective directors or partners)), and directors, officers, employees and agents of any of them (a "Selling Holder")agents) so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading, or (iii) any violation by the Company of the Securities Act, any state securities or "blue sky sky" laws or any rule or regulation thereunder in connection with such registration; , provided, however, that the Company shall will not be liable to 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 Investor or Controlling Person 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 Investor expressly for use in such registration statement, such Selling Holder shall Investor will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other Holder Investor holding Registrable Securities (including its partners (including partners of partners and stockholders of such respective directors or partners) and directors, officers, employees and agents of any of themagents) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder an Investor for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company2.06(a) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that the proportion of the total securities Registrable Securities sold under such registration statement which is being sold by such Selling Holder Investor or (ii) the proceeds received by such Selling Holder Investor from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a2.06(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.62.06, in lieu of indemnifying such indemnified party thereunder, shall shall, subject to the terms of the Subordination Agreement, contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the other Selling Holders selling Investors and the underwriters from the offering of the Registrable Securities and Founder Securities, as applicable, 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, the other Selling Holders selling Investors and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders selling Investors and the underwriters shall be deemed to be in the same respective proportions that as the net proceeds from the offering (before deducting expenses) received by the Company and the Selling Holders selling Investors 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 and Founder Securities, as applicable. The relative fault of the Company, the Selling Holders selling Investors 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 Company, the Selling Holders selling Investors or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders Investors, and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b2.06(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder an Investor be required to contribute any amount under this Section 9.6(b2.06(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that the proportion of the total securities Registrable Securities sold under such registration statement which is being sold by such Selling Holder Investor or (ii) the proceeds received by such Selling Holder Investor from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. No person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f9(f) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
(dc) The amount paid by an indemnifying party or payable to by an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 9.6 2.06 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 9.6 shall 2.06 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any director or partner, officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a "Holder Indemnified Party"), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal or state statutory law or regulationotherwise, 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 9.6(a) in its capacity insofar as such (and not in its capacity as an officer loss, damage, expense, liability or director claim arises out of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration is based upon any untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 contained in any Shelf Registration Statement or the Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact relates required to be stated 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 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 in conformity with information supplied furnished in writing by or on behalf of any Holder to the Company expressly for use therein.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Selling Holders Company within the meaning of Section 15 of the Securities Act or Section 20 of the underwriters Exchange Act (each, a "Company Indemnified Party") from and against any loss, damage, expense, liability or claim (including the parties' relative intentreasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, knowledgethe Exchange Act or otherwise, access to information and opportunity to correct insofar as such loss, damage, expense, liability or prevent such claim arises out of or is based upon any untrue statement or omissionalleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 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 Shelf Registration Statement giving rise to such indemnification obligation.
(c) The CompanyIf any action, the Selling Holders and the underwriters agree that it would not suit or proceeding (each, a "Proceeding") is brought against any person in respect of which indemnity may be just and equitable if contribution sought pursuant to this Section 9.6(beither subsection (a) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. No person found guilty of fraudulent misrepresentation (within the meaning of Section 11(fb) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
(d) The 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 9.6 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.this
Appears in 1 contract
Sources: Registration Rights Agreement (Lennox International Inc)
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9Article III, and subject to applicable law, the Company shall will indemnify and hold harmless each underwriter, each Holder of Registrable Securities who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)partners and containing in like fashion until individuals are reached), and directors, officers, employees and agents of any of them (them, a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended 1934 (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading, or (iii) any violation by the Company of the Securities Act, any state securities or "blue sky sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall will not be liable to 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 or on behalf of such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With Solely with respect to such 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 Selling Holder expressly for use in such registration statement, such Selling Holder shall will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other Holder of Registrable Securities (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.and
(b) If the indemnification provided for in Section 9.6(a3.5(a) above for any reason is held (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right to appeal) to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.63.5, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b3.5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.,
(dc) The 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 9.6 3.5 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 9.6 shall 3.5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any .
(d) Each party entitled to indemnification of legal fees and costs pursuant to under this Section 9.6 3.5 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be paid approved by the indemnifying party when Indemnified Party (whose approval shall not be unreasonably withheld); and, provided, further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 3.5, except to the extent the Indemnifying Party is prejudiced in its ability to defend such action, and as shall not relieve the Indemnifying Party of any liability that it may have otherwise than under this Section 3.5. The Indemnified Party may participate in such fees and costs are incurred defense at such party's expense; provided, however, that the Indemnifying Party shall pay such expense if representation of such Indemnified Party by the indemnified party.counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceeding. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the plaintiff or claimant to such Indemnified Party of a release from all liability in respect to such claim or litigation, and no Indemnified Party shall consent to entry of any judgment or settle any such claim or litigation for which
Appears in 1 contract
Sources: Stockholders' Agreement (Affiliated Managers Group Inc)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the same extent provided statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the immediately preceding sentence. In no eventlight of the circumstances under which such statements were made, not misleading, and the 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, damage, expense, liability, claim or action in respect thereof; provided, however, that the Company shall the liability not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a Selling 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 Company expressly for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer use in, any Shelf Registration Statement or director of any Prospectus, including, without limitation, information provided to the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold Company by such Selling Holder in a Notice and Questionnaire; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party; provided further, however, that no Initial Purchaser or (ii) Holder shall be entitled to this indemnity to the proceeds received by extent, and only to the extent, such Selling Holder from its sale 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 Founder SecuritiesHolder, as the case may be) under , during a Suspension Period, provided such registration statementInitial 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, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives and agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 (A) 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 Company expressly for use 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent such Indemnifying Party is materially prejudiced by such omission. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein (other than as a result of the limitations on indemnification specified therein), then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) 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 Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters 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 Company, Company or by the Selling Holders or the underwriters Initial Purchasers and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchasers or any officerperson controlling any Holder or Initial Purchaser, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the Company expressly for use therein, provided, however, that the Company shall not be required to provide any indemnify pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action 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 written information pertaining to the Initial Purchaser or Holder furnished by or on behalf of the 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 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 to such person, at common law or otherwise prior to the same extent 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 loss, damage, expense, liability or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability or claim (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, in connection with such information, (ii) arises out of or is based upon a sale of Registrable Securities during a Suspension Period by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i), or (iii) arises out of or is based upon a sale of Registrable Securities by a Notice Holder without delivery of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(g) or Section 2(d); and, subject to the limitation set forth immediately preceding sentencethis clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any Company Indemnified Party 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise except to the extent that the Indemnifying Party is prejudiced thereby. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterthe Bookrunner, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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 Bookrunner or any claim asserted), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of the Bookrunner, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, at common law however, that the Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or otherwise action 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 furnished in writing by or on behalf of the Bookrunner or a Holder to the same extent Company expressly for use in, any Shelf Registration Statement or any Prospectus; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives and agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 (A) 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 Company expressly for use 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 in or with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), 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(i) or Section 2(d)(i)(C), provided the Company shall have theretofore made available to or provided such Holder 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 sentenceclause, 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) 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 Bookrunner, on the other Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 Bookrunner, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters Bookrunner, 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 Company, Company or by the Selling Holders or the underwriters Bookrunner and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Bookrunner agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Bookrunner or any officerperson controlling any Holder or the Bookrunner, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including and its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees employees, members, representatives and agents of any of them (a "Selling Holder"), and each person person, if any, who controls any of them Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934(each, as amended (hereinafter the "Exchange Act") (a "Controlling Person")“Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several claim (including any the reasonable cost of 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), to ) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, Exchange Act, or any other law, including any state securities law, or any rule or regulation thereunder relating to the Exchange Act offer or other federal or state statutory law or regulationsale of the Registrable Securities pursuant to a Registration Statement, at common law or otherwise, as incurred, insofar as such lossesloss, claimsdamage, damages expense, liability or liabilities arise claim arises out of or are is based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including the Shelf Registration Statement, or in any related preliminary or definitive prospectusProspectus, or any amendment thereof or supplement to such registration statement thereto, or prospectus), (ii) any arises out of or is based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it or necessary to make the statements therein (in it the case of any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made) 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 that: (i) the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense expense, liability or liability claim arises from and out of or is based on an upon any untrue statement or omission or alleged untrue statement or omission made in reliance on of a material fact contained in, or omitted from, and in conformity with information required to be used in any Shelf Registration Statement, related prospectus or any amendments or supplements thereto pursuant to the Securities Act furnished in writing to the Company by such underwriter, Selling Holder 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(d) The 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 9.6 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties applicable Holder Indemnified Party to the Company expressly for use in a Shelf Registration Statement or Prospectus or any officeramendment thereof or supplement thereto; and (ii) with respect to any untrue statement or omission of material fact made in the Shelf Registration Statement, directoror in any Prospectus, employeethe indemnity agreement contained in this Section 6(a) shall not inure to the benefit of a Holder Indemnified Party if the untrue statement or omission of material fact was corrected in amendments or supplements to the Prospectus, agent as then amended or controlling person supplemented, if such corrected Prospectus was timely made available by the Company pursuant to Section 3(g) hereof, and the Holder Indemnified Party was promptly advised in writing not to use the incorrect prospectus prior to the use giving rise to any such loss, damage, expense, liability or claim and such Holder Indemnified Party, notwithstanding such advice, used it. This indemnity agreement will be in addition to any liability that the Company may otherwise have. This indemnity agreement will not apply to any loss, damage, expense, liability or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder who has previously received notice from the Company of the indemnified parties. Any indemnification commencement of legal fees and costs the Suspension Period pursuant to this Section 9.6 shall be paid by 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify and hold harmless the indemnifying party when Company and as such fees its directors, officers, employees, members, representatives and costs are incurred by agents and each person, if any, who controls the indemnified party.Company within the meaning of either
Appears in 1 contract
Sources: Registration Rights Agreement (I2 Technologies Inc)
Indemnification; Contribution. (a) Incident The Company and the Issuer agree to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterthe Initial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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 Initial Purchaser or any claim asserted), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchaser, the Holders or any Controlling Person (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such Holder 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, not misleading, and the Company and the Issuer shall reimburse, as incurred, the Holder Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, at common law however, that the Company and the Issuer shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or otherwise 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 same extent Company 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 a 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; provided further, however, that this indemnity agreement will be in addition to any liability which the Company and the Issuer may otherwise have to such Holder Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, the Issuer, each of their respective directors, officers, employees, representatives, agents and any person who controls the Company or the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 (A) 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 Company expressly for use 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 in or with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), 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(i) or Section 2(d)(i)(C), provided the Company 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 sentenceclause, each Holder shall reimburse, as incurred, the Company and the Issuer for any legal or other expenses reasonably incurred by the Company 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 such Holder may otherwise have to the Company and the Issuer or any of its controlling persons. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise unless and to the extent such failure to give notice results in the loss or compromise of any material rights or defenses of the Indemnifying Party. The Indemnifying Party shall be entitled to appoint counsel (including local counsel) of the Indemnifying Party’s choice at the Indemnifying Party’s expense to represent the Indemnified Party in any action for which indemnification is sought (in which case the Indemnifying Party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the Indemnifying Party, retained by the Indemnified Party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Party. Notwithstanding the Indemnifying Party’s election to appoint counsel (including local counsel) to represent the Indemnified Party in an action, the Indemnified Party shall have the right to employ separate counsel (including local counsel), and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action) if (i) the use of counsel chosen by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to the Indemnifying Party; (iii) the Indemnifying Party shall not have employed counsel satisfactory to the Indemnified Party to represent the Indemnified Party within sixty (60) days after notice of the institution of such action; or (iv) the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the expense of the Indemnifying Party. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened action in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional release of such Indemnified Party from all liability on any claims that are the subject matter of such action, (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an Indemnified Party, and (iii) does not include any undertaking or obligation to act or to refrain from acting by the Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the CompanyCompany and the Issuer, on the one hand, and by the Holders or the Initial Purchaser, on the other Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 CompanyCompany and the Issuer, on the one hand, and of the Holders or the Initial Purchaser, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 fault of the Company and the Selling Holders and the underwriting discount received by the underwritersIssuer, in each case as set forth in the table on the cover page one hand, and of the applicable prospectusHolders or the Initial Purchaser, bear to on the aggregate public offering price of the Registrable Securities and Founder Securitiesother hand, as applicable. The relative fault of the Company, the Selling Holders and the underwriters 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 Company, Company and the Selling Issuer or by the Holders or the underwriters Initial Purchaser and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Issuer, the Holders and the underwriters Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchaser or any officerperson controlling any Holder or Initial Purchaser, directoror the Company or the Issuer, employee, agent or the Company’s or the Issuer’s officers or directors or any person controlling person the Company or the Issuer and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (SL Green Operating Partnership, L.P.)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriterSecurityholder, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))Affiliates, and directors, officers, employees employees, members, managers and agents of any of them (a "Selling Holder"), and each person Person who controls any of them Securityholder within the meaning of Section 15 of either the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), to the fullest extent permitted by Applicable Law, from and against any and all losses, claims, damages, liabilities, expenses and liabilities, joint or several actions (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), "Losses") to which they, they or any of them, 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, insofar as such losses, claims, damages or liabilities Losses arise out of or are based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including a Registration Statement as originally filed or in any related preliminary amendment thereof, or definitive prospectusthe 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 to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements therein (in it 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 (iii) any violation other expenses reasonably incurred by the Company of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder them in connection with investigating or defending any such registrationLosses or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company shall will not be liable in any case to the extent that any such loss, claim, damage, expense Losses arise (i) out of or liability arises from and is based on an upon any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made therein in reliance on upon and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder Information 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 other written information furnished to the Company by such Selling Holder expressly or on behalf of any Securityholder specifically for use inclusion therein, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 4.08(d) hereof. This indemnity clause will be in such registration statement, such Selling Holder shall addition to any liability which the Company may otherwise have.
(b) Each IFC Party severally (and not jointly) agrees to indemnify and hold harmless each underwriter, the Company (including and each of its Affiliates, directors, officersemployees, employees and agents)members, each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees managers and agents of any of them) whose securities are so registered, and each person Person who controls any of them the Company within the meaning of Section 15 of either 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, expenses and liabilities, joint or several, Losses to which theythey or any of them may become subject insofar as such Losses arise out of or are based 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 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 themthe circumstances under which they were made) not misleading, 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 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 IFC Party furnished to the Company by or on behalf of such IFC Party specifically for inclusion in the immediately preceding sentence. In no eventdocuments referred to in the foregoing indemnity; provided, however, that the total amount to be indemnified by such IFC Party pursuant to this Section 4.11(b) shall be limited to the net proceeds (after deducting broker's commissions) received by such IFC Party in the offering to which such Registration Statement, Disclosure Package, Prospectus or Free Writing Prospectus relates. This indemnity clause will be in addition to any liability of a Selling Holder for indemnification which any such IFC Party may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director 4.11 of notice of the Company) exceed the lesser commencement of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party action in respect of any lossesa Loss, claimssuch indemnified party will, damages, expenses or liabilities referred if a claim in respect thereof is to therein, then each be made against the indemnifying party under this Section 9.64.11, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (A) will not relieve it from liability under subparagraph (i) or (ii) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses; and (B) will not, in lieu of any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in subparagraph (i) or (ii) 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 thereunder(who shall not, shall contribute except with the consent of the indemnified party, be counsel to the amount paid 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 payable 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), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (A) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (B) 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; (C) 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 (D) 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 parties 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 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 (A) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such 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 lossesindemnified party will be indemnified hereunder and (C) does not include any statement as to or any admission of fault, claimsculpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 4.11(a), damagesSection 4.11(b) and Section 4.11(c) above is unavailable to or insufficient to hold harmless an indemnified party with respect to any Loss referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate Losses (including legal or other expenses reasonably incurred in connection with investigating or liabilities (idefending same) 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 and Founder Securities, as applicable, 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, indemnifying party on the one hand and the indemnified party on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses Losses (or liabilitiesactions in respect thereof), as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, indemnifying party on the Selling Holders one hand or the underwriters indemnified party on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders and the underwriters parties agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b4.11(d) were determined by pro rata allocation (even if the IFC Parties or per capita allocation any agents 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 9.6(b) in excess 4.11(d). The amount paid or payable by an indemnified party as a result of the lesser of Losses (ior actions in respect thereof) that proportion of the total of such losses, claims, damages referred to above in this Section 4.11(d) shall be deemed to include any legal or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold other expenses reasonably incurred by such Selling Holder indemnified party in connection with investigating or (ii) defending any such action or claim. Notwithstanding the proceeds received by such Selling Holder from its sale provisions of Registrable Securities or Founder Securitiesthis Section 4.11(d), as the case may be, under such registration statement. No person found 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 Person who was not found guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 4.11(d), each Person who controls any IFC Party or agent within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any IFC Party or agent shall have the same rights to contribution as such IFC Party or agent, 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 4.11(d).
(de) The amount paid by an indemnifying party or payable to an indemnified party as a result provisions of the losses, claims, damages and liabilities referred to in this Section 9.6 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 this Section 9.6 shall 4.11 will remain in full force and effect effect, regardless of any investigation made by or on behalf of any IFC Party or the indemnified parties Company or any officerof the officers, director, employee, agent directors or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant Persons referred to in this Section 9.6 shall be paid by 4.11, and will survive the indemnifying party when and as such fees and costs are incurred by the indemnified partytransfer of Registrable Securities.
Appears in 1 contract
Indemnification; Contribution. (a) Incident Agilent and World Trade jointly and severally agree to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriter▇▇▇▇▇▇▇ ▇▇▇▇▇ and its affiliates, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees employees, agents and agents of any of them controlling persons (a "Selling Holder"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ and each such other person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act"being an “Indemnified Party”) (a "Controlling Person")), from and against any and all losses, claims, damages, expenses damages and liabilities, joint or several (including several, to which such Indemnified Party becomes subject under any investigationapplicable law, legal and other expenses incurred or otherwise related to or arising out of or in connection withwith (a) any transaction contemplated by this Agreement, and (b) any amount paid untrue statement or alleged untrue statement of a material fact contained in settlement of, any action, suit information (whether oral or proceeding written) or documents furnished or made available by World Trade or Agilent or any claim assertedof their affiliates in connection with any transaction contemplated pursuant to this Agreement or the omission or the alleged omission to state therein a material fact necessary in order to make the statements therein not misleading, in light of the circumstances under which they were made; provided, however, that neither Agilent nor World Trade shall be liable, in the case of this clause (b), to which they, or the extent that 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any such untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 therein in reliance on upon and in conformity with written information relating to ▇▇▇▇▇▇▇ ▇▇▇▇▇ (or the relevant affiliate thereof) furnished in writing to the Company Agilent or World Trade by such underwriter, Selling Holder 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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 sentencetherein. In no event, however, event shall the liability Agilent or World Trade be liable for fees and expenses of a Selling Holder more than one counsel (in addition to any local counsel) separate from their own counsel for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters all Indemnified Parties in connection with the statements any one action or omissions which resulted in such losses, claims, damages, expenses separate but similar or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Selling Holders and the underwriters shall be deemed to be related actions 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 jurisdiction arising out of the applicable prospectus, bear same general allegations or circumstances. Agilent and World Trade jointly and severally agree to the aggregate public offering price of the Registrable Securities and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
promptly reimburse any Indemnified Party for all expenses (c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(d) The 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 9.6 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal including reasonable counsel fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.and
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriterHolder of Registrable Securities, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))the Affiliates, and directors, officers, employees employees, members, managers and agents of any of them (a "Selling Holder"), each such Holder and each person Person who controls any of them such Holder within the meaning of Section 15 of either the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and 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 to which they or any claim asserted)of them may become subject insofar as such losses, to which theyclaims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a 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 themor are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and 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 under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including a Registration Statement as originally filed or in any related preliminary or definitive prospectusamendment 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 to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements in it therein not misleading, to the extent, but only to the extent, that any such untrue statement or (iii) alleged untrue statement or omission or alleged omission is contained in any violation by written information relating to such Holder furnished to the Company by or on behalf of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registrationHolder specifically for inclusion therein; provided, however, that the Company 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. 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 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 extent 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 lossaction; 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, damageaction, expense suit or liability arises from and 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 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 consented to the Company by such underwriterindemnifying party, Selling Holder which consent shall not be unreasonably withheld. No indemnifying party, in the defense of any such claim or Controlling Person expressly for use litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise that does not include as an unconditional term thereof the giving by the claimant or plaintiff therein, to such indemnified party, of a full and final release from all liability in such registration statement. With respect to such untrue statement claim or omission litigation.
(d) In the event that the indemnity provided in Section 8(a) or alleged untrue statement Section 8(b) above is unavailable to or omission in the information furnished insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party agrees to contribute to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such aggregate losses, claims, damages and liabilities (including, without limitation, legal or liabilities indemnified against equal other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to that proportion of the total securities sold under which such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, indemnifying party on the one hand and by the indemnified party on the other Selling Holders and the underwriters from the offering of the Registrable Securities and Founder SecuritiesNew Common Stock. If, as applicablehowever, or (ii) if the allocation provided by clause (i) above 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 the such relative benefits referred to in clause (i) above but also the relative fault of the Company, indemnifying party on the one hand and the indemnified party on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses damages or liabilitiesliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, indemnifying party on the Selling Holders one hand or the underwriters indemnified party on the other and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders and the underwriters parties agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or per capita allocation 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 9.6(b) in excess 8(d). The amount paid or payable by an indemnified party as a result of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal (or actions in respect thereof) referred to that proportion of the total securities sold under such registration statement which is being sold above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such Selling Holder indemnified party in connection with investigating or (ii) defending any such action or claim. Notwithstanding the proceeds received by such Selling Holder from its sale provisions of Registrable Securities or Founder Securitiesthis Section 8(d), as the case may be, under such registration statement. No person found 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 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).
(de) The amount paid by an indemnifying party or payable to an indemnified party as a result provisions of the losses, claims, damages and liabilities referred to in this Section 9.6 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 this Section 9.6 shall 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 indemnified parties Company or any officerof the officers, director, employee, agent directors or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant Persons referred to in this Section 9.6 shall be paid 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 when 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 1▇▇▇ ▇▇▇) 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 as (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such fees and costs are incurred by seller from the indemnified partysale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Charter Communications Inc /Mo/)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus)each Holder, (ii) any omission or alleged omission to state in such document each person (a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agentsPerson”), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directorsif any, officers, employees and agents of any of them) whose securities are so registered, and each person who controls any of them Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and (iii) the respective officers, directors, 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, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus or any free writing prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, at common law however, that the Company shall not be required to provide any indemnification pursuant to this Section 5(a) in any such case insofar as any such loss, damage, expense, liability, claim or otherwise action 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 furnished in writing by or on behalf of a Holder to the same extent provided Company expressly for use in, any Shelf Registration Statement or any Prospectus; provided, further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless (i) the Company, (ii) its directors, officers, employees and (iii) any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 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 Company expressly for use 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, in light of the circumstances under which such statements were made, not misleading; and, subject to the limitation set forth in the immediately preceding sentenceclause, 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 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 Proceeding and the Indemnifying Party shall assume the defense of such Proceeding; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 5 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 5(a) or Section 5(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) 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 and Founder Securities, as applicable, 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 Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling Holders one hand, and of the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 5 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 5(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 5, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 5 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (American Oil & Gas Inc)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person person, if any, who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") Holder (a "“Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i”) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any action in respect thereof (including the reasonable cost of them, investigation) which such Holder 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the Holder Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, at common law or otherwise however, that the indemnity agreement contained in this subsection (a) shall not inure to the same extent benefit of any Holder Indemnified Party insofar as any such loss, damage, expense, liability, claim or action 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 furnished in writing by or on behalf of such Holder Indemnified Party to the Company expressly for use in connection with any Shelf Registration Statement or Prospectus; provided further, that no Holder Indemnified Party shall be entitled to indemnity pursuant to this Section 6(a) to the extent, and only to the extent, such loss, damage, expense, liability, claim or action arises out of (1) a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities 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 or (2) such Holder Indemnified Party’s failure to deliver, if required pursuant to the 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 have to any Holder or any of its Controlling Persons.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 (A) 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 Company expressly for use 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 sentenceclause, 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party, or the delay of such notification, shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party under this Section 6 except to the extent such Indemnifying Party is materially prejudiced by such omission or delay. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6, or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities (i) actions 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 and Founder Securities, as applicable, 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 CompanyCompany on the one hand and of the Holders or the Initial Purchasers, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the CompanyCompany on the one hand and of the Holders or the Initial Purchasers, on the Selling Holders and the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchasers or any officerperson controlling any Holder, directoror the Company or the Company’s directors, employeeofficers, agent employees, representatives, agents or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall will indemnify and hold harmless each underwriter, each Holder who offers or sells any Agent and its respective affiliates (as such Registrable Securities or Founder Securities term is defined in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 Rule 501(b) of the Securities 1933 Act or Section 20 of the Securities Exchange Act of 1934Regulations (each, as amended (hereinafter the "Exchange Act") (a "Controlling Person"an “Affiliate”)), from and against any and all losses, claims, damages, expenses and damages or 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)several, to which they, or any of them, such Agent and its respective Affiliates may become subject subject, under the Securities Act, the Exchange 1933 Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based on (i) any upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary the Registration Statement or definitive prospectusthe Prospectus, or any amendment or supplement thereto, any materials or information provided to such registration statement investors by, or prospectus)with the approval of, (iithe Company in connection with the marketing of the offering of the Shares, including any road show or investor presentations made to investors by the Company, or any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) any under the 1933 Act or arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements in it therein not misleading, and will reimburse the Agents and their respective Affiliates for any legal or other expenses (iii) any violation including the fees and disbursements of counsel chosen by the Company of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder Agents) reasonably incurred by such Agent and its respective Affiliates in connection with investigating or defending any such registrationaction or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense damage or liability arises from and out of or is based on upon an untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made in reliance on upon and in conformity with any information furnished in writing relating to the Company by such underwriter, Selling Holder 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 any Agent furnished to the Company in writing by such Selling Holder Agent expressly for use therein, it being understood and agreed that the only such information furnished by the Agents consists of the information described as such in such registration statementin Section 14 hereof.
(b) Each Agent, such Selling Holder shall severally and not jointly, 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) whose securities are so registered, 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 damages or several, liabilities to which they, or any of them, the Company may become subject subject, under the Securities Act, the Exchange 1933 Act or other federal or state statutory law or regulationotherwise, 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 9.6(a) in its capacity insofar as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus, or any amendment or supplement thereto or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that proportion such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Agent expressly for use therein, it being understood that the only such information furnished by any Agent consists of the total securities sold information set forth in Section 14 hereof; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such registration statement subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which is being sold it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Selling Holder indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party. An indemnifying party shall not be required to indemnify an indemnified party for any amount paid or payable by the proceeds received indemnified party in the settlement of any action, proceeding or investigation without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such Selling Holder from its sale of Registrable Securities (settlement or Founder Securities, as the case may be) under such registration statementjudgment.
(bd) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages, expenses damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses damages or liabilities (ior actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the CompanyCompany on the one hand, and the Agents, on the other Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder SecuritiesShares. If, as applicablehowever, or (ii) if the allocation provided by clause (i) above the immediately preceding sentence is not permitted by applicable lawlaw 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 the such relative benefits referred to in clause (i) above but also the relative fault of the Company, as the case may be, on the one hand, and the Agents, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses damages or liabilitiesliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company, as the Selling Holders case may be, on the one hand, and the underwriters Agents, on the other hand, shall be deemed to be in the same respective proportions that proportion as the total net proceeds from the offering (before deducting expenses) received by the Company Company, as the case may be, bear to the total underwriting discounts and the Selling Holders and the underwriting discount commissions received by the underwritersAgents, 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 and Founder Securities, as applicableProspectus. 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 Company, as the Selling Holders case may be, on the one hand or the underwriters Agents, on the other hand, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders Company and the underwriters Agents agree that it would not be just and equitable if contribution pursuant to this Section 9.6(bsubsection (d) were determined by pro rata or per capita allocation 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 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
subsection (d) ). The amount paid by an indemnifying party or payable to by an indemnified party as a result of the losses, claims, damages and or liabilities (or actions in respect thereof) referred to above in this Section 9.6 subsection (d) shall be deemed to include, subject to the limitations set forth above, include any legal or other expenses reasonably incurred and documented by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), payable as the Agents shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares sold by it and distributed to the public were offered to the public exceeds the amount of any damages which the Agents have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The Agents’ obligations in this subsection (d) to contribute are several in proportion to their respective obligations and not joint.
(e) The obligations of the Company under this Section 6 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same are incurred. The indemnification terms and contribution provided for conditions, to each officer and director of the Agents and each person, if any, who controls the Agents within the meaning of the 1933 Act and each Affiliate of the Agents; and the obligations of the Agents under this Section 9.6 6 shall remain be in full force addition to any liability which the Agents may otherwise have and effect regardless of any investigation made by or on behalf shall extend, upon the same terms and conditions, to each officer and director of the indemnified parties Company (including any person who, with his or any officerher consent, director, employee, agent or controlling person is named in the Registration Statement as about to become a director of the indemnified parties. Any indemnification Company) and to each person, if any, who controls the Company within the meaning of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party1933 Act.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal or state statutory law or regulationotherwise, 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 9.6(a) in its capacity insofar as such (and not in its capacity as an officer loss, damage, expense, liability or director claim arises out of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration is based upon any untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 contained in any Shelf Registration Statement or the Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact relates required to information supplied by be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the Companystatements 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 Selling Holders statements made in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the underwriters and light of the parties' relative intentcircumstances under which they were made, knowledgenot misleading, access to information and opportunity to correct except insofar as any such loss, damage, expense, liability or prevent such claim arises out of or is based upon any untrue statement or omission.
(c) The Companyomission 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 Selling Holders and Company expressly for use therein, provided, however, that the underwriters agree that it would Company shall not be just and equitable if contribution required to provide any indemnify pursuant to this Section 9.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b6(a) in excess any such case insofar as any such loss, damage, expense, liability, claim or action 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 written information pertaining to an Initial Purchaser or Holder furnished by or on behalf of such Initial Purchaser or Holder to the lesser 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 (i) that proportion of any Holder from whom the total of person asserting any such losses, claimsdamages, damages expenses, liabilities, claims or liabilities indemnified against equal actions purchased such Registrable Securities, to the extent that proportion a 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 to such person, at or prior to the written confirmation of the total securities sold under sale of such registration statement which is being sold by Registrable Securities to such Selling Holder 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 loss, damage, expense, liability or (ii) the proceeds received by such Selling Holder claim arising from its sale an offer or sale, occurring during a Suspension Period, of Registrable Securities or Founder Securitiesby a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i).
(b) Each Holder, as severally and not jointly, agrees to indemnify, defend and hold harmless the case may beCompany, under such registration statement. No its directors, officers and any person found guilty of fraudulent misrepresentation (who controls the Company within the meaning of Section 11(f) 15 of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
(d) The 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 9.6 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.Act or
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company and the Guarantor jointly and severally agree to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person, from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such indemnified party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, as incurred, 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 any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, 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 Issuer Free Writing Prospectus or in any amendment or supplement thereto, in the light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the indemnified parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, however, that the Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action 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 furnished in writing by or on behalf of the Initial Purchaser or a Holder to the Company expressly for use in, any Shelf Registration Statement or any Prospectus or any Issuer Free Writing 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 Holder from whom the person asserting any such losses, damages, expenses, liabilities, claims or actions purchased the Registrable Securities concerned, to the extent that a 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, expenses, liability, claim or action of such Holder results from the fact that there was not sent or given to such person, at common law or otherwise prior to the same extent written confirmation of the sale of such Registrable Securities 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 provided the Company had previously furnished 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 have to such indemnified party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company and the Guarantor, and their respective directors, officers, employees and any person who controls the Company and the Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such 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 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 Company expressly for use in, any Shelf Registration Statement or Prospectus or Issuer Free Writing 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 Issuer Free Writing Prospectus or necessary to make such Holder Information not misleading; and, subject to the limitation set forth in the immediately preceding sentenceclause, each Holder shall reimburse, as incurred, the Company, as applicable, for any legal or other expenses reasonably incurred by the Company, the Guarantor 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, the Guarantor or any of its controlling persons. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such indemnified party or otherwise. Such indemnified party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the right to direct that portion of the defense of such Proceeding on behalf of the indemnified party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the indemnified parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 indemnified party, effect any settlement of any pending or threatened Proceeding in respect of which such indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party under Section 6(a) or Section 6(b), or insufficient to hold such indemnified party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) 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 Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 Purchaser, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters 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 Company, Company or by the Selling Holders or the underwriters Initial Purchaser and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerInitial Purchaser or any person controlling any Holder or any Initial Purchaser, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (KKR Financial Holdings LLC)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the same extent Company expressly for use therein; provided that the foregoing indemnity shall not inure to the benefit of any Initial Purchaser who fails to deliver a Prospectus (as then amended or supplemented and provided by the Company to the Initial Purchasers in the immediately preceding sentencerequisite quantity and on a timely basis to permit proper delivery on or prior to the Closing Date) to the person asserting any loss, damage, expense, liability or claim caused by an untrue statement or alleged untrue statement of a material fact contained in the Preliminary Prospectus or caused by any omission or alleged omission to state therein a material fact necessary to make the statement therein, in the light of the circumstances under which they were made, not misleading, if such Prospectus would have cured the material misstatement or omission or alleged material misstatement or omission.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, 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 information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, in connection with such information. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party except to the extent that it has been prejudiced in any material respect by such failure or relieve such Indemnifying Party from any liability it may have under this Section 6 otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Bankunited Financial Corp)
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable lawfiled hereunder, the Company shall will indemnify and hold harmless each underwriterHolder, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder")agents, and each person who controls any of them (a "Controlling Person") within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as 1934,a s amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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, 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading, or (iii) any violation by the Company of the Securities Act, any state securities or "blue sky sky" laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall will not be liable to 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 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 or a Controlling Person expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(d) The 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 9.6 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified party.each
Appears in 1 contract
Indemnification; Contribution. (a) Incident to If any Registrable Securities are included in a registration statement referred to in under this Section 9, and subject to Agreement:
(i) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each underwriterHolder, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and the partners, members, managers, officers, directors, employees, and stockholders of each such Holder; legal counsel, accountants and other advisors for each such Holder; any underwriter (as defined in the Securities Act) for each such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), ; and each person Person, if any, who controls any of them such Holder or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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, liabilities and expenses and liabilities, (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 statutory law laws, but only insofar as such Losses arise out of or regulationare based upon any of the following statements or omissions (collectively, at common law a “Violation”):
(1) any untrue statement or otherwise to the same extent provided alleged untrue statement of a material fact contained in the immediately preceding sentence. In no eventregistration statement, including any preliminary Prospectus or final Prospectus contained therein, or any amendments or supplements thereto; or
(2) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; 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 (which consent shall not be unreasonably withheld), nor shall the liability Company be liable in any such case for any such Loss to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of a Selling Holder or any underwriter expressly for use in connection with such registration; and provided, further, 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 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, but only insofar as such Losses arise out of or are based upon any Violation, in each case to the extent that such Violation arises out of or is based upon information furnished in writing by or on behalf of a Holder expressly for use in connection with such registration; provided, however, that any indemnification required by this Section 2(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 unreasonably withheld) and in no event shall the amount of any indemnity obligation under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company2(f)(ii) exceed the lesser gross proceeds from the applicable offering received by the Holders.
(iii) Promptly after receipt by an indemnified party under this Section 2(f) of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 2(f), such indemnified party shall deliver to the indemnifying party a written notice thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party; provided, however, that an indemnified party shall have the right to retain its own counsel, with 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 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 2(f) to the extent, but only 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 2(f). Any such indemnified party shall have the right to employ 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) that proportion of the total of indemnifying party has agreed to pay such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder fees and expenses or (ii) the proceeds received indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such indemnified party and the indemnifying party, and such indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or in addition to those available to the indemnifying party and that the assertion of such Selling Holder from its sale defenses would create a conflict of Registrable Securities interest such that counsel employed by the indemnifying party could not faithfully represent the indemnified party (in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such action, claim or Founder Securitiesproceeding on behalf of such indemnified party, as it being understood, however, that the case indemnifying party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of such indemnified party a conflict of interest may be) under exist between such registration statementindemnified party and any other of such 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 expenses of such additional counsel or counsels).
(biv) If the indemnification provided for in required by this Section 9.6(a2(f) above for any reason from the indemnifying party is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, expenses or liabilities Losses referred to therein, then each indemnifying party under in this Section 9.62(f):
(1) the indemnifying party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) Losses 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 and Founder Securities, as applicable, 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, the other Selling Holders indemnifying party and the underwriters indemnified parties in connection with the statements or omissions which actions that resulted in such losses, claims, damages, expenses or liabilitiesLosses, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, the Selling Holders such indemnifying party and the underwriters 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 Companyby, the Selling Holders such indemnifying party or the underwriters indemnified parties, and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement Violation. The amount paid or omission.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;
(c2) The Company, the Selling Holders and the underwriters parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b2(f)(iv) were determined by pro rata or per capita allocation or by any other method of allocation which does not take into account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement2(f)(iv)(1). No person found 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 Person who was not found guilty of such fraudulent misrepresentation.
(dv) The amount paid by an indemnifying party or payable to an indemnified party as a result obligations of the losses, claims, damages Company and liabilities referred to in the Holders under this Section 9.6 2(f) shall be deemed to include, subject survive the completion of any offering of Registrable Securities pursuant to the limitations set forth aboveregistration statement under this Agreement, 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 this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified partyotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (UniTek Global Services, Inc.)
Indemnification; Contribution. (ai) Incident to any registration statement referred to in this Section 9, and subject Subject to applicable law, the Company shall will indemnify and hold harmless each underwriter, each Holder who offers or sells any such of Registrable Securities or Founder Securities in connection with (and each underwriter for such registration statement Holder (including its partners (including partners of partners if any and stockholders of any such partnersif retained by the Holder)), and directors, officers, employees and agents of any of them (a "Selling Holder")) being registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), to the full extent lawful, from and against any and all losses, claims, damages, judgments, expenses and liabilities, joint or several (including any investigation, legal and other expenses incurred in connection with, and any amount paid in any settlement of, any action, suit or proceeding or any claim asserted), 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, insofar as such losses, claims, damages damages, judgments, expenses or liabilities arise out of or are based on (iA) any untrue statement or alleged untrue statement of a material fact contained in such registration statement Registration Statement (including any related preliminary or definitive prospectusProspectus, or any amendment or supplement to such registration statement Registration Statement or prospectusProspectus), (iiB) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading, or (iiiC) any violation by the Company of the Securities Act, the Exchange Act, any state securities or blue sky laws Blue Sky Laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall will not be liable to the extent that such loss, claim, damage, judgment, expense or liability arises from and is based on an a material untrue statement or omission or alleged material untrue statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriterHolder, Selling Holder underwriter or Controlling Person controlling person expressly for use in such registration statementRegistration Statement. With respect to such untrue statement or omission or alleged untrue statement or omission in the information furnished to the Company by such Selling Each Holder expressly for use in such registration statement, such Selling Holder shall of Registrable Securities will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents)Company, 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) whose securities are so registered, Registrable Securities 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, judgments, 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 9.6(a) in its capacity insofar as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages damages, judgments, expenses and liabilities arise solely by reason of a material untrue statement or liabilities indemnified against equal omission made in reliance on and in conformity with information furnished in writing to that proportion the Company by such Holder for use in such Registration Statement. The obligations of any Holder under this clause (i) shall be limited to the net proceeds to such Holder of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (sold pursuant to the Registration Statement to which the loss, claim, damage, judgment, expense or Founder Securities, as the case may be) under such registration statementliability relates.
(bii) If the indemnification provided for in Section 9.6(aclause (i) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, judgments, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, judgments, expenses or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by fault, if any, of the Company, Company and the other Selling selling Holders and the underwriters from the offering of the Registrable Securities and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 fault of the Company and the Selling 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 and Founder Securities, as applicable. The relative fault of the Company, the Selling Holders and the underwriters 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 Company, the Selling Holders Company or the underwriters selling Holders and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders Holders, and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(bclause (ii) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraphsentence. In no event, however, shall a Selling The obligations of any Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or clause (ii) are several, not joint, and shall be limited to an amount equal to the net proceeds received by to such Selling Holder from its sale of Registrable Securities sold pursuant to the Registration Statement to which the loss, claim, damage, judgment expense or Founder Securities, as the case may be, under such registration statementliability relates. 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 who was not found guilty of such fraudulent misrepresentation.
(diii) The amount paid by an If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any indemnified party with respect to which indemnity may be sought against the indemnifying party or payable pursuant to an indemnified party as a result of the losses, claims, damages and liabilities referred to in this Section 9.6 shall be deemed to include12(f), subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party shall promptly notify the indemnified party in connection with investigating writing and the indemnifying party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to such indemnified party and the indemnifying party shall be responsible for the payment of all fees and expenses; provided, however, that the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to any indemnified party (except to the extent that the indemnifying party is materially prejudiced or defending otherwise forfeits substantive rights or defenses by reason of such failure). An indemnified party shall have the right to employ separate counsel in any such action or claimproceeding and to participate in the defense thereof, payable as but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (1) the indemnifying party agrees in writing to pay such fees and expenses, (2) the indemnifying party has failed promptly to assume the defense and employ counsel satisfactory to the indemnified party or (3) the named parties to any such action or proceeding (including any impleaded parties) include both the indemnified party and the indemnifying party and such indemnified party shall have been advised in writing by its counsel that representation of it and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation has been proposed) due to actual or potential differing interests between them (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of such indemnified party). It is understood that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for such indemnified parties which firm shall be designated in writing by the Holders of a majority in interest of the Registrable Securities on behalf of the Holders of all of the Registrable Securities, and that all such fees and expenses shall be reimbursed as they are incurred. The indemnification and contribution provided indemnifying party shall not be liable for this Section 9.6 shall remain in full force and effect regardless any settlement of any investigation made by or on behalf such action effected without the written consent of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when (which shall not be unreasonably withheld), but if settled with the written consent of the indemnifying party, or if there is a final judgment with respect thereto, the indemnifying party agrees to indemnify and as hold harmless each indemnified party from and against any loss or liability by reason of such fees and costs are incurred by settlement or judgment. The indemnifying party shall not, without the prior written consent of each indemnified partyparty affected thereby, effect any settlement of any pending or threatened proceeding in which such indemnified party has sought indemnity hereunder, unless such settlement includes an unconditional release of such indemnified party from all liability arising out of such action, claim, litigation or proceeding.
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall indemnify and hold harmless each underwriterthe Holders, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners their officers, directors and stockholders of any such partners))Members, and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act agent or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and investment adviser thereof against any and all losses, claims, damages, liabilities and expenses and liabilities, joint or several (including reasonable attorneys’ fees and expenses) incurred by such party pursuant to any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any actual or threatened action, suit or suit, proceeding or any claim asserted), 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, insofar as such losses, claims, damages or liabilities arise investigation arising out of or are based on upon (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related Registration Statement, any Prospectus or preliminary or definitive prospectusProspectus, or any amendment or supplement to such registration statement any of the foregoing, or prospectus), (ii) any omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements therein (in it the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or (iii) any violation by the Company of the Securities Actare based upon, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall not be liable to 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 with respect to the Company by such underwriter, Selling Holder 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 Holders furnished to the Company by such Selling Holder the Holders or their counsel expressly for use in such registration statement, such Selling Holder shall indemnify and hold harmless each underwritertherein. In connection with an Underwritten Offering, the Company (including its directorsshall indemnify the underwriters thereof, their officers, employees and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees directors and agents of any of them) whose securities are so registered, and each person Person who controls any of them 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 the Holders. Notwithstanding the foregoing provisions of this Section 13(a), from the Company shall not be liable to the Holders, 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 13 for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of an untrue statement or alleged untrue statement or omission or alleged omission in the preliminary Prospectus if the Holders, or other Person on behalf of the Holders, failed to send or deliver a copy of a final Prospectus to the Person asserting the claim prior to the written confirmation of the sale of the Registrable Securities to such Person and such statement or omission was corrected in such final Prospectus and the Company had previously and namely furnished sufficient copies thereof to the Holders in accordance with this Agreement.
(b) In connection with any registration of Registrable Securities pursuant to this Agreement, the Holders shall furnish to the Company and any underwriter in writing such information, including the name, address and the amount of Registrable Securities held by the Holders, as the Company or any underwriter reasonably requests for use in the Registration Statement relating to such registration or the related Prospectus and agrees to indemnify and hold harmless the Company, any underwriter, each such party’s officers and directors and each Person who controls each such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any agent or investment adviser thereof against any and all losses, claims, damages, liabilities and expenses (including reasonable attorneys’ fees and liabilitiesexpenses) incurred by each such party pursuant to any actual or threatened action, joint suit, proceeding or severalinvestigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, to which theyany Prospectus or preliminary Prospectus, or any amendment or supplement to any of themthe foregoing, may become subject under or (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 a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, but only to the extent that any such untrue statement or omission is made in reliance on and in conformity with information with respect to the Holders furnished to the Company or any underwriter by the Holders or their counsel specifically for inclusion therein. Notwithstanding the foregoing provisions of this Section 13(b), the Holders shall not be liable to the Company, any underwriter, each such parties’ officers or directors, any other Person who controls any such party (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), or any agent or investment advisor thereof, if the Holders had provided information curing any untrue statement or omission in time reasonably sufficient to prevent the inclusion of such untrue statement or omission in the Registration Statement.
(c) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Section 13 (provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 13 except to the extent the indemnifying party shall have been actually 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 of the commencement thereof, the Exchange Act or other federal or state statutory law or regulationindemnifying party shall be entitled to participate therein and, at common law or otherwise to the same extent provided that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 13 for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, if (i) the 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 is not the result of an unreasonable determination by such indemnified party that counsel selected pursuant to the immediately preceding sentence. In no event, however, sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director reasonable satisfaction of the Company) exceed the lesser of (i) that proportion of the total of indemnified party its ability to finance such lossesdefense, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received actual or potential defendants in, or targets of, any such action include both the indemnifying party and such indemnified party and such indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and such indemnified party were to be represented by the same counsel, could result in a conflict of interest for such Selling Holder from its sale counsel or materially prejudice the prosecution of Registrable Securities the defenses available to such indemnified party, then such indemnified party shall have the right to employ separate counsel, in which case the fees and expenses of one counsel or firm of counsel (plus one local or Founder Securitiesregulatory counsel or firm of counsel) 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. No indemnified party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, as in the case may beof an action, suit, claim or proceeding exclusively seeking monetary relief, shall not be unreasonably withheld) under such registration statementof each indemnifying party.
(bd) If the indemnification from the indemnifying party provided for in this Section 9.6(a) above for any reason 13 is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses or liabilities referred to therein, then each the indemnifying party under this Section 9.6party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders indemnifying party and the underwriters indemnified party in connection with the statements or omissions actions which resulted in such losses, claims, damages, expenses or liabilitiesliabilities and expenses, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, the Selling Holders such indemnifying party and the underwriters 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 the Companyby, the Selling Holders such indemnifying party or the underwriters 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.
(cpayable 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 13(c) hereof, any legal and other fees and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The Company, the Selling Holders and the underwriters parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b13(d) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 13(d). Notwithstanding the immediately preceding paragraph. In provisions of this Section 13(d), no event, however, underwriter shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser 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 (i) that proportion 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 and the Holders shall not be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of the Holders were offered to the public exceeds the amount of any damages which the Holders has otherwise been required to pay by reason of such losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. No person found 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 found guilty of such fraudulent misrepresentation. If indemnification is available under this Section 13, the indemnifying parties shall indemnify each indemnified party to the fullest extent provided in Section 13(a) or Section 13(b) hereof, as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 13(d).
(de) The amount paid by an indemnifying party or payable to an indemnified party as a result provisions of the losses, claims, damages and liabilities referred to in this Section 9.6 13 shall be deemed in addition to include, subject any liability which any party may have to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending and shall survive any such action or claim, payable as the same are incurredtermination of this Agreement. The indemnification and contribution provided for by this Section 9.6 13 shall remain in full force and effect regardless irrespective of any investigation made by or on behalf of the an indemnified parties or any officerparty, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and so long as such fees and costs are incurred by the indemnified partyparty is not guilty of acting in a fraudulent, reckless or grossly negligent manner.
Appears in 1 contract
Sources: Registration Rights Agreement
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including and its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees employees, members, representatives and agents of any of them (a "Selling Holder"), and each person person, if any, who controls any of them Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934(each, as amended (hereinafter the "Exchange Act") (a "Controlling Person")“Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several claim (including any the reasonable cost of 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), to ) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, Exchange Act, or any other law, including any state securities law, or any rule or regulation thereunder relating to the Exchange Act offer or other federal or state statutory law or regulationsale of the Registrable Securities pursuant to a Registration Statement, at common law or otherwise, as incurred, insofar as such lossesloss, claimsdamage, damages expense, liability or liabilities arise claim arises out of or are is based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including the Shelf Registration Statement, or in any related preliminary or definitive prospectusProspectus, or any amendment thereof or supplement to such registration statement thereto, or prospectus), (ii) any arises out of or is based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it or necessary to make the statements therein (in it the case of any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the light of the circumstances under which they were made) 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 that: (i) the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense expense, liability or liability claim arises from and out of or is based on an upon any untrue statement or omission or alleged untrue statement or omission made in reliance on of a material fact contained in, or omitted from, and in conformity with information required to be used in any Shelf Registration Statement, related prospectus or any amendments or supplements thereto pursuant to the Securities Act furnished in writing by or on behalf of the applicable Holder Indemnified Party to the Company by such underwriter, Selling Holder or Controlling Person expressly for use in such registration statement. With a Shelf Registration Statement or Prospectus or any amendment thereof or supplement thereto; and (ii) with respect to such any untrue statement or omission of material fact made in the Shelf Registration Statement, or alleged in any Prospectus, the indemnity agreement contained in this Section 6(a) shall not inure to the benefit of a Holder Indemnified Party if the untrue statement or omission of material fact was corrected in the information furnished amendments or supplements to the Prospectus, as then amended or supplemented, if such corrected Prospectus was timely made available by the Company pursuant to Section 3(g) hereof, and the Holder Indemnified Party was promptly advised in writing not to use the incorrect prospectus prior to the use giving rise to any such loss, damage, expense, liability or claim and such Holder Indemnified Party, notwithstanding such advice, used it. This indemnity agreement will be in addition to any liability that the Company may otherwise have. This indemnity agreement will not apply to any loss, damage, expense, liability or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by such Selling a Notice Holder expressly for use in such registration statementwho has previously received notice from the Company of the commencement of the Suspension Period pursuant to Section 3(i).
(b) Each Holder, such Selling Holder shall severally and not jointly, agrees to indemnify and hold harmless each underwriter, the Company (including and its directors, officers, employees and agents)employees, each other Holder (including its partners (including partners of partners and stockholders of such partners) and directorsmembers, officers, employees representatives and agents of any of them) whose securities are so registered, and each person person, if any, who controls any of them 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”) from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act or otherwise, joint insofar as such loss, damage, expense, liability or severalclaim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company required to be included in any Shelf Registration Statement, to which theyor in any Prospectus, or any amendment thereof or supplement thereto, or arises out of themor is based upon any omission or alleged omission to state a material fact required to be stated in any Shelf Registration Statement or in any amendment or supplement thereto or necessary to make the statements therein not misleading, may become subject under or arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the Securities Actstatements in any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, 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 eventlight of the circumstances under which they were made, not misleading, in connection with such information; provided, however, that no such Holder shall be liable for any claims hereunder in excess of the liability amount of net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Shelf Registration Statement.
(c) If any action, suit or proceeding (each, a Selling Holder for indemnification under “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this Section 9.6(a6, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in its capacity as such (and not in its capacity as an officer or director writing of the Companyinstitution of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding with one counsel (in addition to any local counsel) exceed reasonably satisfactory to the lesser Indemnified Party and shall pay the fees and expenses of such counsel related to such Proceeding; provided, however, that failure to so notify the Indemnifying Party shall not relieve such Indemnifying Party from any liability hereunder except to the extent it is materially prejudiced as a result thereof, but in no event shall such Indemnifying Party be relieved from any liability which it may otherwise have separate from these indemnification provisions. Such Indemnified Party shall have the right to employ its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) that proportion the Indemnified Party is a Holder of Notes representing not less than 33% of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion aggregate principal amount of the total securities sold under such registration statement which is being sold by such Selling Holder or then outstanding Notes, (ii) the proceeds received Indemnifying Party and the Indemnified Party shall have mutually agreed to the contrary, (iii) the 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 Indemnified Party or (iv) the 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 may be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all Indemnified Parties in accordance with the foregoing sentence, and that all such Selling Holder 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. 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 sale consent if (i) such settlement is entered into more than 60 Business Days after receipt by the Indemnifying Party of Registrable Securities the aforesaid request, (ii) such Indemnifying Party shall not have reimbursed the Indemnified Party in accordance with such request prior to 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 of any pending or Founder Securitiesthreatened Proceeding in respect of which any Indemnified Party is a party, as unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the case may be) under subject matter of such registration statementProceeding and without admission of fault by the Indemnified Party.
(bd) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, damages, expenses, liabilities or claims, damagesas incurred, expenses or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. The relative benefits received by Notwithstanding the Companyprovisions of this Section 6, neither any of the Selling Holders and the underwriters Purchasers nor any Holder shall be deemed required to be indemnify or contribute any amount 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 excess of the applicable prospectus, bear to amount by which the aggregate public offering total price of at which the Registrable Securities and Founder Securitiessold by such Holder or Purchaser, as applicablethe 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, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(bsubsection (d) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statementabove. 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 who was not found guilty of such fraudulent misrepresentation.
(d) . The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount paid by an indemnifying party or payable of Registrable Securities they have sold pursuant to an indemnified party as a result of the lossesShelf Registration Statement, claims, damages and liabilities referred to not joint. The remedies provided for in this Section 9.6 6 are not exclusive and shall not limit any rights or remedies which may otherwise be deemed available to include, subject to the limitations set forth above, any legal Indemnified Party at law 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. equity,
(f) The indemnification indemnity and contribution provided for provisions contained in this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, director, employee, agent the Company or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification any Registrable Security by any Holder.
(g) Section 6 of legal fees and costs pursuant to this Section 9.6 shall Agreement may not be paid amended except by an instrument in writing signed by the indemnifying party when and as such fees and costs are incurred by the indemnified partyIndemnified Party affected thereby.
Appears in 1 contract
Sources: Registration Rights Agreement (I2 Technologies Inc)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the same extent provided Company expressly for use therein.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, 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 information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 immediately preceding sentencelight of the circumstances under which they were made, not misleading, in connection with such information. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent that it has been materially prejudiced by such failure. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. The relative benefits benefit received by the Company, the Selling Holders and the underwriters Company shall be deemed to be in equal to the same respective proportions that the total net proceeds from the offering initial placement pursuant to the Purchase Agreement (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 and Founder to which such losses, claims, damages or liabilities relate. The relative benefit received by any Holder shall be deemed to be equal to the value of receiving registration rights under this Agreement for the Registrable Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Nci Building Systems Inc)
Indemnification; Contribution. (ai) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriterSecurityholder, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))Affiliates, and directors, officers, employees employees, members, managers and agents of any of them (a "Selling Holder"), and each person Person who controls any of them Securityholder within the meaning of Section 15 of either the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), to the fullest extent permitted by Applicable Law, from and against any and all losses, claims, damages, liabilities, expenses and liabilities, joint or several actions (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), “Losses”) to which they, they or any of them, 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, insofar as such losses, claims, damages or liabilities Losses arise out of or are based on (i) upon any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including a Shelf Registration Statement as originally filed or in any related preliminary amendment thereof, or definitive prospectusthe 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 to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements therein (in it 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 (iii) any violation other expenses reasonably incurred by the Company of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder them in connection with investigating or defending any such registrationLosses or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company shall will not be liable in any case to the extent that any such loss, claim, damage, expense Losses arise (i) out of or liability arises from and is based on an upon any such untrue statement or alleged untrue statement or omission or alleged untrue statement or omission made therein in reliance on upon and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder Information 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 other written information furnished to the Company by such Selling Holder expressly or on behalf of any Securityholder specifically for use inclusion therein, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 4.07(d) hereof. This indemnity clause will be in such registration statement, such Selling Holder shall addition to any liability which the Company may otherwise have.
(ii) Each IFC Party severally (and not jointly) agrees to indemnify and hold harmless each underwriter, the Company (including and each of its Affiliates, directors, officersemployees, employees and agents)members, each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees managers and agents of any of them) whose securities are so registered, and each person Person who controls any of them the Company within the meaning of Section 15 of either 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, expenses and liabilities, joint or several, Losses to which theythey or any of them may become subject insofar as such Losses arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Shelf Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any 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 themthe circumstances under which they were made) not misleading, 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 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 IFC Party furnished to the Company by or on behalf of such IFC Party specifically for inclusion in the immediately preceding sentence. In no eventdocuments referred to in the foregoing indemnity; provided, however, that the total amount to be indemnified by such IFC Party pursuant to this Section 4.07(g)(ii) shall be limited to the net proceeds (after deducting broker’s commissions) received by such IFC Party in the offering to which such Shelf Registration Statement, Disclosure Package, Prospectus or Free Writing Prospectus relates. This indemnity clause will be in addition to any liability of a Selling Holder for indemnification which any such IFC Party may otherwise have
(iii) Promptly after receipt by an indemnified party under this Section 9.6(a4.07(g) in its capacity as such (and not in its capacity as an officer or director of notice of the Company) exceed the lesser commencement of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party action in respect of any lossesa Loss, claimssuch indemnified party will, damages, expenses or liabilities referred if a claim in respect thereof is to therein, then each be made against the indemnifying party under this Section 9.64.07(g), notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (A) will not relieve it from liability under subparagraph (i) or (ii) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses; and (B) will not, in lieu of any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in subparagraph (i) or (ii) 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 thereunder(who shall not, shall contribute except with the consent of the indemnified party, be counsel to the amount paid 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 payable 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), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (A) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (B) 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; (C) 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 (D) 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 parties 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 4.07(g) 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 (A) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such 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 lossesindemnified party will be indemnified hereunder and (C) does not include any statement as to or any admission of fault, claimsculpability or a failure to act by or on behalf of any indemnified party.
(iv) In the event that the indemnity provided in Section 4.07(g)(i), damagesSection 4.07(g)(ii) and Section 4.07(g)(iii) above is unavailable to or insufficient to hold harmless an indemnified party with respect to any Loss referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate Losses (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or liabilities (idefending same) 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 and Founder Securities, as applicable, 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, indemnifying party on the one hand and the indemnified party on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses Losses (or liabilitiesactions in respect thereof), as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, indemnifying party on the Selling Holders one hand or the underwriters indemnified party on the other and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders and the underwriters parties agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b4.07(g)(iv) were determined by pro rata allocation (even if the IFC Parties or per capita allocation any agents 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 9.6(b) in excess 4.07(g)(iv). The amount paid or payable by an indemnified party as a result of the lesser of Losses (ior actions in respect thereof) that proportion of the total of such losses, claims, damages referred to above in this Section 4.07(g)(iv) shall be deemed to include any legal or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold other expenses reasonably incurred by such Selling Holder indemnified party in connection with investigating or (ii) defending any such action or claim. Notwithstanding the proceeds received by such Selling Holder from its sale provisions of Registrable Securities or Founder Securitiesthis Section 4.07(g)(iv), as the case may be, under such registration statement. No person found 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 Person who was not found guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 4.07(g)(iv), each Person who controls any IFC Party or agent within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any IFC Party or agent shall have the same rights to contribution as such IFC Party or agent, 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 4.07(g)(iv).
(dv) The amount paid by an indemnifying party or payable to an indemnified party as a result provisions of the losses, claims, damages and liabilities referred to in this Section 9.6 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 this Section 9.6 shall 4.07(g) will remain in full force and effect effect, regardless of any investigation made by or on behalf of any IFC Party or the indemnified parties Company or any officerof the officers, director, employee, agent directors or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant Persons referred to in this Section 9.6 shall be paid by 4.07(g), and will survive the indemnifying party when and as such fees and costs are incurred by the indemnified partytransfer of Registrable Securities.
Appears in 1 contract
Indemnification; Contribution. (a) Incident Indemnification by Acquiror. ----------------------------- --------------------------- Acquiror agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriter, each Holder who offers or sells included in any such registration of Registrable Securities or Founder Securities in connection with such registration statement (including pursuant to this Agreement, its partners (including partners of partners trustees, officers and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), directors and each person Person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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 any agent or investment adviser thereof against any and all losses, claims, damages, liabilities and expenses (including reasonable attorneys' fees and liabilitiesexpenses) incurred by such party pursuant to any actual or threatened action, joint suit, proceeding or several, to which they, investigation arising out of 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 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of based upon (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 contained in any Registration Statement, any Prospectus or preliminary Prospectus, or any amendment or supplement to any of the foregoing or (ii) any omission or alleged omission to state therein a material fact relates required to be stated therein or necessary to make the statements therein (in the case of a Prospectus or a preliminary Prospectus, in light of the circumstances then existing) not misleading, except in each case insofar as the same arise out of or are based upon, any such untrue statement or omission made in reliance on and in conformity with information supplied with respect to such Holder furnished in writing to Acquiror by the Companysuch Holder or its counsel expressly for use therein. In connection with an underwritten offering, the Selling Holders or Acquiror will indemnify the underwriters thereof, their officers, directors and the parties' relative intent, knowledge, access to information agents and opportunity to correct or prevent each Person who controls such statement or omission.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. No person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) 15 of the Securities Act or Section 20 of the Exchange Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
(d) The amount paid by an indemnifying party or payable the same extent as provided above with respect to an indemnified party as a result the indemnification of the lossesHolders. Notwithstanding the foregoing provisions of this Section 10(a), claimsAcquiror will not be liable to any Holder, damages and liabilities referred 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 Holder or underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), under the indemnity agreement in this Section 9.6 shall be deemed 10(a) for any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense that arises out of such Holder's or other Person's failure to include, subject send or deliver a copy of a final Prospectus to the limitations set forth above, any legal Person asserting an untrue statement or other expenses reasonably incurred by such indemnified party in connection with investigating alleged untrue statement or defending any such action omission or claim, payable as alleged omission at or prior to the same are incurred. The indemnification and contribution provided for this Section 9.6 shall remain in full force and effect regardless of any investigation made by or on behalf written confirmation of the indemnified parties or any officer, director, employee, agent or controlling person sale of the indemnified parties. Any indemnification of legal fees Registrable Securities to such Person if such statement or omission was corrected in such final Prospectus and costs pursuant Acquiror has previously furnished copies thereof to such Holder in accordance with this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified partyAgreement.
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred of any Registrable Securities under the Securities Act pursuant to in this Section 9, and subject to applicable lawAgreement, the Company shall will indemnify and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (statement, including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees employees, representatives and agents of any of them (a "Selling HolderSELLING HOLDER"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling PersonCONTROLLING PERSON")), from and against any and all losses, claims, damages, expenses and liabilities, joint or several (including any investigation, legal and other expenses reasonably 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 otherwiseotherwise ("INDEMNIFIABLE CLAIMS"), insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities or blue sky laws law or any rule or regulation thereunder promulgated under the Securities Act, the Exchange Act or any state securities law, (iv) any failure to register or qualify the Registrable Securities in connection with any state where the Company or its agents has affirmatively undertaken or agreed in writing that the Company (the undertaking of any underwriter chosen by the Company being attributed to the Company) will undertake such registrationregistration or qualification on the Selling Holder's behalf (provided that in such instance the Company shall not be so liable if it has undertaken its best efforts to so register or qualify the Registrable Securities), or (v) any blue sky application or other document executed by the Company specifically for the purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof; providedPROVIDED, howeverHOWEVER, that the Company shall will not be liable to 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 of a material fact contained in such registration statement or omission made in reliance on and in conformity with information furnished in writing to the Company by such underwriter, Selling Holder 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 shall will indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees employees, representatives and agents), each other Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees employees, representatives and agents of any of them) whose securities are so registered, and each person who controls Controlling Person of any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Actthem), 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 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company5(a) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the net proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement, except in the case of willful fraud.
(b) If the indemnification provided for in Section 9.6(a5(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.65, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) in such proportion as is appropriate to reflect (i) the relative benefits received by the Company, the other Selling Holders and the underwriters from the offering of the Registrable Securities and Founder Securities, as applicable, 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, the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or 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 for registration under Section 3(a) and in which the Company does not register any shares of capital stock, the proportion of contribution by the Company, the Selling Holders and the underwriters shall in all cases be governed solely 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, Company and the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b5(b) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b5(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the net proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statement. 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 who was not found guilty of such fraudulent misrepresentation.
(dc) The 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 9.6 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 9.6 shall 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification No indemnifying party, in the defense of legal any such claim or 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.
(d) Promptly after receipt by an indemnified party of any Indemnifiable Claim, the indemnified party shall give notice thereof in writing to the Company; PROVIDED, HOWEVER, the failure to give such notice shall not relieve the Company from its obligations under this Section 5 except to the extent that the Company shall have been materially and adversely prejudiced as a result of the failure or delay in giving such notice. In any proceeding involving an Indemnifiable Claim, the Company shall control the defense thereof; provided that, the indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the Company shall pay as incurred the fees and costs expenses of the counsel retained by the indemnified party in the event that (i) the Company and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Company and the indemnified party and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in an underwriting agreement entered into by the Company in connection with an underwritten public offering in which the Holders or the Founder seek to include the Registrable Securities or the Founder Registrable Securities pursuant to this Section 9.6 2 hereof are in conflict with the foregoing provisions, the provisions of the underwriting agreement shall control. The Company shall not, without the prior written consent of any indemnified party, consent to the entry of any judgment against the indemnified party or enter into any settlement or compromise which (i) includes an admission of fault of the indemnified party or (ii) does not include, as an unconditional term thereof, the full release of the indemnified party from all liability in respect of such Indemnifiable Claim, which release shall be paid by the indemnifying party when in form and as such fees and costs are incurred by substance reasonably satisfactory to the indemnified party.
Appears in 1 contract
Sources: Registration Rights Agreement (Hittite Microwave Corp)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterof the Trustees, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall indemnify and hold harmless each underwriter, the Company (including its directors, officers, employees and agents), each other person, if any, who controls, is controlled by or is under common control with any Trustee or Holder (including its partners (including partners of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and their respective Affiliates (each, an “Non-Company Indemnified Party”) from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions or proceedings in respect thereof (including the reasonable cost of them, investigation) which such Non-Company Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or other federal otherwise, insofar as such loss, damage, expense, liability, claim, action or proceeding (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or Issuer Free Writing Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, (ii) arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise arises out of or is based upon any omission or alleged omission to state a material fact necessary in order to make the same extent provided statements made in any Prospectus, Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, in the immediately preceding sentence. In no eventlight of the circumstances under which such statements were made, not misleading, or (iii) arises out of any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities laws in connection with the sale of securities by a Holder pursuant to any Registration Statement in which such Holder is participating, and the Company shall reimburse, as incurred, the Non-Company Indemnified Parties for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, damage, expense, liability, claim or action in respect thereof; provided, however, that the Company shall the liability not be required to provide any indemnification pursuant to this Section 7(a) in any such case insofar as any such loss, damage, expense, liability, claim, action or proceeding arises out of or is based upon any untrue statement or omission or alleged untrue statement or omission of a Selling material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of a Trustee or a Holder to the Company expressly for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer use in, any Registration Statement, Prospectus or director of Issuer Free Writing Prospectus, including, without limitation, information provided to the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold Company by such Selling Holder in a Notice and Questionnaire; provided further, however, that no Trustee or (ii) Holder shall be entitled to this indemnity to the proceeds received by extent, and only to the extent, such Selling Holder from its sale loss, damage, expense, liability, claim, action or proceeding arises out of a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities (by such Trustee or Founder SecuritiesHolder, as the case may be) under , during a Suspension Period, provided such registration statementTrustee or Holder, as the case may be, received, prior to such disposition, a Suspension Notice with respect to such Suspension Period. This indemnity agreement will be in addition to any liability which the Company may otherwise have to any Non-Company Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and their respective Affiliates (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions or proceedings in respect thereof (including the reasonable cost of investigation) which such Company 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 (A) any untrue statement or alleged untrue statement of a material fact contained in, and in conformity with any Holder Information, 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 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 hereto; and, subject to the limitation set forth in the immediately preceding clause, each Holder shall reimburse, as incurred, any Company Indemnified Party for any legal or other expenses reasonably incurred by such Company Indemnified Party in connection with investigating or defending any loss, damage, expense, liability, claim, action or proceeding in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to 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 net proceeds (after deducting the underwriters’ discounts and commissions, if any) received by such Holder upon the sale, pursuant to the 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 7(a) or Section 7(b), such Non-Company Indemnified Party or Company Indemnified Party (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, including the employment of counsel reasonably satisfactory to the Indemnified Party and payment of all fees and expense; provided, however, that the omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have, within a reasonable period of time in light of the circumstances, employed counsel to defend such Proceeding or such Indemnified Party shall have reasonably concluded 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 (in which case such Indemnifying Party shall not have the right to direct the defense of such Proceeding on behalf of the Indemnified Party, in any of which events such 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings (in additional to any local counsel) representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 fully reimbursed such Indemnified Party in accordance with such request prior to 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 any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 7 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 7(a) or Section 7(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, damages, expenses, liabilities, claims, damages, expenses actions or liabilities proceedings (i) 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 Trustees, on the other Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 Trustees, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, damages, expenses, liabilities, claims, damages, expenses actions or liabilitiesproceedings, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters Trustees, 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 Company, Company or by the Selling Holders or the underwriters Trustees and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, damages, expenses, liabilities, claims and actions referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any Proceeding.
(ce) The Company, the Selling Holders and the underwriters Trustees agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 7 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 7(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 7, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of dollar amount by which the net proceeds (iafter deducting the underwriters’ discounts and commissions, if any) that proportion from the sale of the total Registrable Securities giving rise to such contribution obligation exceeds the amount of any damages which it has otherwise been required to pay by reason of such losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Registration Statement, and not joint. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 7 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Trustees or any officerperson controlling any Holder or Trustee, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (LDK Solar Co., Ltd.)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterthe Initial Purchasers, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchasers or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, at common law however, that the Company shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or otherwise action 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 furnished in writing by or on behalf of an Initial Purchaser or a Holder to the same extent Company expressly for use in, any Shelf Registration Statement or any Prospectus; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 (A) 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 Company expressly for use 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, or (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 security holder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(i), 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 2(c)(i)(C), provided the Company 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 sentenceclause, 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, unless the Indemnifying Party shall be materially prejudiced as a result of the failure to deliver notice, and then only to the extent of such prejudice. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 and as required by this Agreement prior to the 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could reasonably be expected have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) 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 Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters 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 Company, Company or by the Selling Holders or the underwriters Initial Purchasers and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchasers or any officerperson controlling any Holder or the Initial Purchasers, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriterHolder of Registrable Securities, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))the Affiliates, and directors, officers, employees employees, members, managers and agents of any of them (a "Selling Holder"), each such Holder and each person Person who controls any of them such Holder within the meaning of Section 15 of either the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and 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), to which they, they or any of them, them may become subject under 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, the 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 federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, claim, damage, liability or regulationaction (whether or not the indemnified party is a party to any proceeding); provided, at common law however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or otherwiseexpense 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 on (i) 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 such registration statement (including a Registration Statement as originally filed or in any related preliminary or definitive prospectusamendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, 18 preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement to such registration statement thereto, or prospectus), (ii) any arise out of or are based upon the omission or alleged omission to state in such document therein a material fact required to be stated in it therein or necessary to make the statements therein (in it 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 (iii) alleged untrue statement or omission or alleged omission is contained in any violation by written information relating to such Holder furnished to the Company by or on behalf of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registrationHolder specifically for inclusion therein; provided, however, that the Company 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 extent 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 such loss, claim, damage, expense there may be legal defenses available to it and/or other indemnified parties which are different from 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 additional to those available to the Company by 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 underwriteraction; 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, Selling Holder in connection with any one action or Controlling Person expressly for use in such registration statement. With respect to such untrue statement separate but substantially similar or omission or alleged untrue statement or omission related actions in the information furnished to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 same jurisdiction arising out of the Securities Act same general circumstances or Section 20 allegations, be liable for the fees and expenses of the Exchange Act, from and against more than one separate firm of attorneys (in addition to any and local counsel) for 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 sentenceindemnified parties. In no event, however, An indemnifying party shall the liability of a Selling Holder for indemnification not be liable under this Section 9.6(a8 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 its capacity as the defense of any such (and not in its capacity as an officer claim or director litigation, shall, except with the consent of the Company) exceed the lesser each indemnified party, consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (i) that proportion of the total 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 liabilities indemnified against equal other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to that proportion of the total securities sold under which such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) 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 and Founder Securities, as applicable, 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, indemnifying party on the one hand and the indemnified party on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses damages or liabilitiesliabilities (or actions in respect thereof), as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. 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 Company, indemnifying party on the Selling Holders one hand or the underwriters indemnified party on the other and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) . The Company, the Selling Holders and the underwriters parties agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b8(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or per capita allocation 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 9.6(b) in excess 8(d). The amount paid or payable by an indemnified party as a result of the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal (or actions in respect thereof) referred to that proportion of the total securities sold under such registration statement which is being sold above in this Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by such Selling Holder indemnified party in connection with investigating or (ii) defending any such action or claim. Notwithstanding the proceeds received by such Selling Holder from its sale provisions of Registrable Securities or Founder Securitiesthis Section 8(d), as the case may be, under such registration statement. No person found 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 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.
(de) The amount paid by an indemnifying party or payable to an indemnified party as a result provisions of the losses, claims, damages and liabilities referred to in this Section 9.6 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 this Section 9.6 shall 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 indemnified parties Company or any officerof the officers, director, employee, agent directors or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant Persons referred to in this Section 9.6 shall be paid 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 when 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 as (ii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such fees and costs are incurred by seller from the indemnified partysale of such Registrable Securities pursuant to such Shelf Registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Citadel Securities LLC)
Indemnification; Contribution. (a) Incident Agilent and World Trade jointly and severally agree to any registration statement referred to in this Section 9, and subject to applicable law, the Company shall indemnify and hold harmless each underwriter▇▇▇▇▇▇▇ ▇▇▇▇▇ and its affiliates, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees employees, agents and agents of any of them controlling persons (a "Selling Holder"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ and each such other person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act"being an “Indemnified Party”) (a "Controlling Person")), from and against any and all losses, claims, damages, expenses damages and liabilities, joint or several (including several, to which such Indemnified Party becomes subject under any investigationapplicable law, legal and other expenses incurred or otherwise related to or arising out of or in connection with, with (a) any transaction contemplated by this Agreement and (b) any amount paid untrue statement or alleged untrue statement of a material fact contained in settlement of, any action, suit information (whether oral or proceeding written) or documents furnished or made available by World Trade or Agilent or any claim assertedof their affiliates in connection with any transaction contemplated pursuant to this Agreement or the omission or the alleged omission to state therein a material fact necessary in order to make the statements therein not misleading, in light of the circumstances under which they were made; provided, however, that neither Agilent nor World Trade shall be liable, in the case of this clause (b), to which they, or the extent that 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any such untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission made therein in reliance upon and in conformity with written information relating to state ▇▇▇▇▇▇▇ ▇▇▇▇▇ (or the relevant affiliate thereof) furnished to Agilent or World Trade by ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use therein. In no event shall Agilent or World Trade be liable for fees and expenses of more than one counsel (in such document a material fact required addition to be stated in it or necessary to make the statements in it not misleading, or (iiiany local counsel) any violation by the Company of the Securities Act, any state securities or blue sky laws or any rule or regulation thereunder separate from their own counsel for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Agilent and World Trade jointly and severally agree to promptly reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising from any of the matters referred to in the preceding sentence, whether or not such registration; providedIndemnified Party is a party and whether or not such claim, however, that action or proceeding is initiated or brought by or on behalf of World Trade or Agilent or the Company relevant issuer or whether or not resulting in any liability. Neither Agilent nor World Trade shall not be liable for any settlement of any proceeding effected without its written consent, 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 such 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 liability arises from willful misconduct. If the indemnification of an Indemnified Party provided for in this Agreement is for any reason held unenforceable, Agilent and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on World Trade jointly and in conformity with information furnished in writing severally agree to contribute to the Company by such underwriter, Selling Holder 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, 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. In no event, however, shall the liability of a Selling Holder for indemnification under this Section 9.6(a) in its capacity as such (and not in its capacity as an officer or director of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under for which such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities (or Founder Securities, as the case may be) under such registration statement.
(b) If the indemnification provided for in Section 9.6(a) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 9.6, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities unenforceable (ia) in such proportion as is appropriate to reflect the relative benefits received by to World Trade and Agilent, on the Companyone hand, and ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the other Selling Holders and the underwriters from the offering hand, of the Registrable Securities and Founder Securities, as applicablerelevant transaction contemplated pursuant to this Agreement, or (iib) if (but only if) the allocation provided by for in clause (ia) above is not permitted for any reason prohibited by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (ia) above but also World Trade and Agilent’s relative fault, on the one hand, and the relative fault of the Company▇▇▇▇▇▇▇ ▇▇▇▇▇, on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilitieshand, 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 benefits received by to World Trade and Agilent, on the Companyone hand, and to ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Selling Holders and the underwriters other hand, shall be deemed to be in the same respective proportions proportion that the net proceeds from the offering (before deducting expenses) total value received or contemplated to be received by the Company and the Selling Holders and the underwriting discount received by the underwriters, World Trade and/or Agilent 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 and Founder Securities, as applicable. 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 Company, the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution any transactions contemplated pursuant to this Section 9.6(b) were determined by pro rata Agreement bears to the fees paid or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no eventbe paid to ▇▇▇▇▇▇▇ ▇▇▇▇▇ with respect to such transaction; provided, however, that, to the extent permitted by applicable law, in no event shall a Selling Holder the Indemnified Parties be required to contribute any in respect of a specific transaction an aggregate amount under this Section 9.6(b) in excess of the lesser of (i) fees actually paid in such transaction to ▇▇▇▇▇▇▇ ▇▇▇▇▇. The foregoing contribution agreement shall be in addition to any rights that proportion of the total of such losses, claims, damages any Indemnified Party may have at common law or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statementotherwise. No person found guilty of fraudulent misrepresentation (within investigation or failure to investigate by any Indemnified Party shall impair the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
(d) The 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 9.6 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 foregoing indemnification and contribution provided for this Section 9.6 shall remain in full force agreement or any other right an Indemnified Party may have. Agilent and effect regardless 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 investigation made 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 indemnified parties 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 officerof its subsidiaries or affiliates in which such Indemnified Party is not named as a defendant, directorWorld Trade and Agilent agree to reimburse such Indemnified Party for all reasonable expenses incurred by it in connection with such Indemnified Party’s appearing and preparing to appear as such a witness, employeeincluding, agent or controlling person of without limitation, the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs are incurred by the indemnified partyexpenses of its legal counsel.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the same extent provided Company expressly for use therein.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors and officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, 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 information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 immediately preceding sentencelight of the circumstances under which they were made, not misleading, in connection with such information. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company and each of the Guarantors agree, jointly and severally, to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a "HOLDER INDEMNIFIED PARTY"), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, insofar as such loss, damage, expense, liability or claim is caused by any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise is caused by 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the same extent provided Company expressly for use therein.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company and each Guarantor, and each of their respective directors and officers and any person who controls the Company or any such Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "COMPANY INDEMNIFIED PARTY") from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability or claim is caused by any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or is caused by any omission or alleged omission to state a material fact required to be stated 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 immediately preceding sentencelight of the circumstances under which they were made, not misleading, in connection with such information. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise, except to the extent that it has been materially prejudiced by such failure. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company and the Guarantors on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company and the Guarantors on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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) benefit 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 Guarantors shall be deemed to be equal to the aggregate public offering price total net proceeds from the initial placement pursuant to the Purchase Agreement (before deducting expenses) of the Registrable Securities and Founder to which such losses, claims, damages or liabilities relate. The relative benefit received by any Holder shall be deemed to be equal to the value of receiving registration rights under this Agreement for the Registrable Securities, as applicable. The relative fault of the Company, the Selling Holders Company and the underwriters Guarantors 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 Company, Company or any Guarantor or by the Selling Holders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Guarantors and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directorthe Company, employeeany Guarantor, agent the officers or controlling person directors of the indemnified parties. Any indemnification Company or any Guarantor or any person controlling the Company or any Guarantor and (iii) the sale of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Genesis Healthcare Corp)
Indemnification; Contribution. (a) Incident The Company and the Issuer agree to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Holders or any Controlling Person (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such Holder 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which such statements were made, not misleading, and the Company and the Issuer shall reimburse, as incurred, the Holder Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, at common law however, that the Company and the Issuer shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or otherwise 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 same extent Company 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 a 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; provided further, however, that this indemnity agreement will be in addition to any liability which the Company and the Issuer may otherwise have to such Holder Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company and the Issuer, each of its directors, officers, employees, representatives, agents and any person who controls the Company and the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 (A) 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 Company expressly for use 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 in or with respect to which such Holder is named as a selling securityholder, of Registrable Securities during a Suspension Period, provided that the Company shall have theretofore provided such Holder a Suspension Notice in accordance with Section 3(k), 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(i) or Section 2(d)(i)(C), provided the Company 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 sentenceclause, each Holder shall reimburse, as incurred, the Company and the Issuer for any legal or other expenses reasonably incurred by the Company 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 such Holder may otherwise have to the Company and the Issuer or any of its controlling persons. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise. The Indemnifying Party shall be entitled to appoint counsel (including local counsel) of the Indemnifying Party’s choice at the Indemnifying Party’s expense to represent the Indemnified Party in any action for which indemnification is sought (in which case the Indemnifying Party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the Indemnifying Party, retained by the Indemnified Party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Party. Notwithstanding the Indemnifying Party’s election to appoint counsel (including local counsel) to represent the Indemnified Party in an action, the Indemnified Party shall have the right to employ separate counsel (including local counsel), and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel (it being understood, however, that such Indemnifying Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action) if (i) the use of counsel chosen by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties that are different from or additional to those available to the Indemnifying Party; (iii) the Indemnifying Party shall not have employed counsel satisfactory to the Indemnified Party to represent the Indemnified Party within sixty (60) days after notice of the institution of such action; or (iv) the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the expense of the Indemnifying Party. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened action in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional release of such Indemnified Party from all liability on any claims that are the subject matter of such action, (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an Indemnified Party, and (iii) does not include any undertaking or obligation to act or to refrain from acting by the Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b), or insufficient to hold such Indemnified Party harmless, in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the CompanyCompany and the Issuer, on the one hand, and by the Holders or the Initial Purchaser, on the other Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 CompanyCompany and the Issuer, on the one hand, and of the Holders or the Initial Purchaser, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 fault of the Company and the Selling Holders and the underwriting discount received by the underwritersIssuer, in each case as set forth in the table on the cover page one hand, and of the applicable prospectusHolders or the Initial Purchaser, bear to on the aggregate public offering price of the Registrable Securities and Founder Securitiesother hand, as applicable. The relative fault of the Company, the Selling Holders and the underwriters 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 Company, Company and the Selling Issuer or by the Holders or the underwriters Initial Purchaser and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Issuer, the Holders and the underwriters Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchaser or any officerperson controlling any Holder or Initial Purchaser, directoror the Company, employeeor the Issuer, agent or the Company’s or the Issuer’s officers or directors or any person controlling person the Company or the Issuer and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Sl Green Realty Corp)
Indemnification; Contribution. (a) Incident The Company and the Subsidiary Guarantor, jointly and severally, agree to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability or claim (including the reasonable cost of investigation), joint or several, to which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or any preliminary prospectus, in conformity with information furnished in writing by or on behalf of any Holder to the same extent provided Company or the Subsidiary Guarantor expressly for use therein.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company and the Subsidiary Guarantor, their directors and officers and any person who controls the Company and the Subsidiary Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation), which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, 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 information furnished in writing by or on behalf of such Holder to the Company or the Subsidiary Guarantor expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 immediately preceding sentencelight of the circumstances under which they were made, not misleading, in connection with such information. In no event, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise except to the extent such Indemnifying Person has been materially prejudiced by such failure. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to take charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 liability by reason of such settlement. No Indemnifying Party shall, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company and the Subsidiary Guarantor on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company and the Subsidiary Guarantor on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions omissions, which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 fault of the Company and the Selling Holders and the underwriting discount received by the underwriters, in each case as set forth in the table Subsidiary Guarantor on the cover page one hand and of the applicable prospectus, bear to Holders on the aggregate public offering price of the Registrable Securities and Founder Securities, as applicable. The relative fault of the Company, the Selling Holders and the underwriters 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 Company, the Selling Subsidiary Guarantor or by the Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Subsidiary Guarantor and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent the Subsidiary Guarantor or their officers or directors or any person controlling person the Company or the Subsidiary Guarantor and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (United Industrial Corp /De/)
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriter, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (each, a “Holder Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilities, joint liability or several, to claim (including the reasonable cost of investigation) which they, or any of them, such Holder Indemnified Party may become subject incur under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin 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 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 in conformity with information furnished in writing by or on behalf of any Holder to the Company expressly for use therein, provided, however, that the Company shall not be required to provide any indemnity pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action 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 written information pertaining to the Initial Purchaser or Holder furnished by or on behalf of the 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 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 to such person, at common law or otherwise prior to the same extent 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 loss, damage, expense, liability or claim arising from an offer or sale, occurring during a Suspension Period, of Registrable Securities by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i).
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability or claim (including the reasonable cost of investigation) which such Company Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability or claim (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, in connection with such information, (ii) arises out of or is based upon a sale of Registrable Securities during a Suspension Period by a Notice Holder to whom the Company theretofore provided a Suspension Notice in accordance with Section 3(i), or (iii) arises out of or is based upon a sale of Registrable Securities by a Notice Holder without delivery of the most recent applicable Prospectus provided to such Holder by the Company pursuant to Section 3(g) or Section 2(d); and, subject to the limitation set forth immediately preceding sentencefollowing this clause, each Holder shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any Company Indemnified Party 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise except to the extent that the Indemnifying Party is prejudiced thereby. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities or liabilities claims referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities or liabilities claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities or liabilitiesclaims, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and on the underwriters 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 Company, Company or by the Selling Holders or the underwriters and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders Company and the underwriters Holders agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or any officerperson controlling any Holder, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident The Company agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners))Holder, and directorseach person, officersif any, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct (a “Controlling Person”) and the respective officers, directors, partners, employees, representatives and agents of the Initial Purchasers, the Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such 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 any untrue statement or alleged untrue statement of a material fact contained in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, and the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other federal expenses reasonably incurred by them in connection with investigating or state statutory law defending any such loss, damage, expense, liability, claim or regulationaction in respect thereof; provided, however, that (i) insofar as any such loss, damage, expense, liability, claim or action 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 furnished in writing by or on behalf of an Initial Purchaser or Holder to the Company expressly for use therein, 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, and (ii) 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 the Registrable Securities concerned, to the extent that a 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 to such person, at common law or otherwise prior to the same 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 have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, its directors, officers, employees, representatives, agents and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 any untrue statement or alleged untrue statement of a material fact contained in information furnished in writing by or on behalf of such Holder to the Company expressly for use in any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary 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 arises out of or is based upon any omission or alleged omission to state a material fact required to be stated 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 light of the circumstances under which they were made, not misleading, in connection with such information; and, subject to the limitation set forth immediately preceding sentencethis 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its upon the sale of the Registrable Securities (or Founder Securities, as pursuant to the case may be) under Shelf Registration Statement giving rise to such registration statementindemnification 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 omission to notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or otherwise unless materially prejudiced thereby. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such Proceeding within a reasonable amount of time following 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with necessary local counsel representing the Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable 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 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 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 Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under subsections (a) and (b) of this Section 6 in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, Company on the one hand and the Holders or the Initial Purchasers on the other Selling Holders and the underwriters hand from the offering of the Registrable Securities and Founder Securities, as applicable, 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, Company on the one hand and of the Holders or the Initial Purchasers on the other Selling Holders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, Company on the Selling one hand and of the Holders and or the underwriters Initial Purchasers 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 Company, Company or by the Selling Holders or the underwriters Initial Purchasers and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of 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 losses, claims, damages untrue or liabilities indemnified against equal to that proportion of the total securities sold under such registration alleged untrue statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities omission or Founder Securities, as the case may be, under such registration statementalleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the indemnified parties any Holder or Initial Purchaser or any officerperson controlling any Holder or Initial Purchaser, directoror the Company, employee, agent or the Company’s officers or directors or any person controlling person the Company and (iii) the sale of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Biomarin Pharmaceutical Inc)
Indemnification; Contribution. (a) Incident The Company and each Guarantor agrees to any registration statement referred to in this Section 9indemnify, and subject to applicable law, the Company shall indemnify defend and hold harmless each underwriterInitial Purchaser, each Holder who offers or sells any such Registrable Securities or Founder Securities in connection with such registration statement Notice Holder, each person (including its partners (including partners of partners and stockholders of any such partners)a “Controlling Person”), and directorsif any, officers, employees and agents of any of them (a "Selling Holder"), and each person who controls any of them within the meaning of Section 15 of the Securities Act Initial Purchaser or Section 20 of the Securities Exchange Act of 1934, as amended (hereinafter the "Exchange Act") (a "Controlling Person")), from and against any and all losses, claims, damages, 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), 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, insofar as such losses, claims, damages or liabilities arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectus, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in 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 the Company shall not be liable to 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 Notice Holder 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 to the Company by such Selling Holder expressly for use in such registration statement, such Selling Holder shall 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) whose securities are so registered, and each person who controls any of them within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ActAct and the respective officers, directors, partners, employees, representatives and agents of any Initial Purchaser, the Notice Holders or any Controlling Person (each, an “Indemnified Party”), from and against any and all lossesloss, claimsdamage, damagesexpense, expenses and liabilitiesliability, joint or several, to which they, claim or any actions in respect thereof (including the reasonable cost of them, investigation) which such Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or other federal otherwise, 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 any Shelf Registration Statement or Prospectus, including any document incorporated by reference therein, or in any amendment or supplement thereto or in any preliminary prospectus, or arises out of or is based upon any omission or alleged omission to state statutory law a material fact required to be stated in any Shelf Registration Statement or regulationin any amendment or supplement thereto or necessary to make the statements therein not misleading, at common law or otherwise 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 light of the circumstances under which such statements were made, not misleading; provided, however, that the Company and the Guarantors shall not be required to provide any indemnification pursuant to this Section 6(a) in any such case insofar as any such loss, damage, expense, liability, claim or action 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 furnished in writing by or on behalf of an Initial Purchaser or a Holder to the same extent Company expressly for use in, any Shelf Registration Statement or any Prospectus; provided further, however, that this indemnity agreement will be in addition to any liability which the immediately preceding sentenceCompany and the Guarantors may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the Company, and each Guarantor, its directors, officers, employees and any person who controls the Company or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company Indemnified Party”) from and against any loss, damage, expense, liability, claim or any actions in respect thereof (including the reasonable cost of investigation) which such Company 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 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 Company expressly for use 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, however, event shall the liability of a Selling any selling Holder for indemnification under this Section 9.6(a) of Registrable Securities hereunder be greater in its capacity as such (and not in its capacity as an officer or director amount than the dollar amount of the Company) exceed the lesser of (i) that proportion of the total of such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) the proceeds received by such Selling Holder from its sale upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities (or Founder Securities, as the case may be) under giving rise to such registration statementindemnification obligation.
(bc) 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 omission to so notify such Indemnifying Party shall not relieve such Indemnifying Party from any liability which it may have to such Indemnified Party, except to the extent that the indemnifying party has been prejudiced in any material respect by such failure through the forfeiture of substantive rights or defenses. Such Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the employment of such counsel shall have been authorized in writing by such Indemnifying Party in connection with the defense of such Proceeding or such Indemnifying Party shall not have employed counsel to have charge of the defense of such 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 (in which case such Indemnifying Party shall not have the 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 be at the expense of such Indemnifying Party), in any of which 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 expenses of more than one separate counsel in any one Proceeding or series of related Proceedings together with reasonably necessary local counsel representing all the Indemnified Parties). An Indemnifying Party shall not be liable for any settlement of such Proceeding effected without the written consent of such Indemnifying Party, which consent shall not be unreasonably withheld or 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 of any Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault or culpability or a failure to act by or on behalf of such Indemnified Party.
(d) If the indemnification provided for in this Section 9.6(a) above for any reason 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party Indemnified Party under Section 6(a) or Section 6(b) or insufficient to hold such Indemnified Party harmless in respect of any losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions referred to therein, then each indemnifying party under this Section 9.6applicable Indemnifying Party, in lieu of indemnifying such indemnified party thereunderIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, expenses expenses, liabilities, claims or liabilities actions (i) in such proportion as is appropriate to reflect the relative benefits received by the CompanyCompany and the Guarantors, on the one hand, and by the Holders or the Initial Purchasers, on the other Selling Holders and the underwriters hand, from the offering of the Registrable Securities and Founder Securities, as applicable, 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 CompanyCompany and the Guarantors, on the one hand, and of the Holders or the Initial Purchasers, on the other Selling Holders and the underwriters hand, in connection with the statements or omissions which resulted in such losses, claims, damages, expenses expenses, liabilities, claims or liabilitiesactions, as well as any other relevant equitable considerations. 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 and Founder Securities, as applicable. The relative fault of the Company, on the Selling one hand, and of the Holders and or the underwriters 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 Company, Company or Guarantors or by the Selling Holders or the underwriters Initial Purchasers and the parties' ’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, 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.
(ce) The Company, and each Guarantor, the Selling Holders and the underwriters Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) 6 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 6(d) above. Notwithstanding the immediately preceding paragraph. In provisions of this Section 6, no event, however, Holder shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of amount by which the total of price at which the Registrable Securities giving rise to such losses, claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being contribution obligation and sold by such Selling 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 (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities alleged untrue statement or Founder Securities, as the case may be, under such registration statementomission or alleged omission. 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 who was not found guilty of such fraudulent misrepresentation. The Holders’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective amount of Registrable Securities they have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(df) The amount paid by an indemnifying party or payable to an indemnified party as a result of the losses, claims, damages indemnity and liabilities referred to contribution provisions contained in this Section 9.6 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 this Section 9.6 6 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or the indemnified parties Initial Purchasers or any officerperson controlling any Holder or Initial Purchaser, directoror the Company or the Guarantors, employee, agent or controlling person the Company’s or any of the indemnified parties. Any indemnification Guarantors’ officers or directors or any person controlling the Company or any Guarantor and (iii) the sale of legal fees and costs pursuant to this Section 9.6 shall be paid any Registrable Security by the indemnifying party when and as such fees and costs are incurred by the indemnified partyany Holder.
Appears in 1 contract
Indemnification; Contribution. (a) Incident to any registration statement referred to in this Section 9, and subject to applicable law, the The Company shall indemnify and hold harmless each underwriterharmless, to the fullest extent permitted by law, each Holder in any offering or sale of Registrable Securities, each Person, if any, who offers or sells participates as an underwriter in any such offering and sale of Registrable Securities or Founder Securities in connection with such registration statement (including its partners (including partners of partners and stockholders of any such partners)), and directors, officers, employees and agents of any of them (a "Selling Holder")Securities, and each person Person, if any, who controls any of them such Holder or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934and their respective directors, as amended (hereinafter the "Exchange Act") (a "Controlling Person"))trustees, from officers, partners, agents, employees and affiliates against any and all losses, claims, damages, liabilities and expenses and liabilities, joint or several (including any investigationreasonable attorneys’ fees, legal disbursements and other expenses incurred in connection withexpenses, as incurred, and any amount amounts paid in any settlement ofeffected with the Company’s consent, which consent shall not be unreasonably withheld or delayed) (collectively, “Losses”) incurred by such party pursuant to any actual or threatened action, suit or suit, proceeding or any claim asserted), 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, insofar as such losses, claims, damages or liabilities arise investigation arising out of or are based on upon: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement (including any related preliminary or definitive prospectusin, or any amendment or supplement to such registration statement or prospectus), (ii) any omission or alleged omission to state in such document of a material fact required to be stated in it in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing or necessary to make the statements therein (in it the case of a Prospectus or a preliminary Prospectus, in the light of the circumstances then existing) not misleading, except in each case insofar as such statements or omissions arise out of or are based upon (iiiA) any violation by the Company of the Securities Act, any state securities such untrue statement or blue sky laws or any rule or regulation thereunder in connection with such registration; provided, however, that the Company shall not be liable to the extent that such loss, claim, damage, expense or liability arises from and is based on an alleged untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information with respect to such Holder furnished in writing to the Company by such underwriter, Selling Holder or Controlling Person its counsel expressly for use therein, (B) the use of any Prospectus after such time as the obligation of the Company to keep effective the Registration Statement of which such Prospectus forms a part has expired or (C) the use of any Prospectus after such time as the Company has advised the Holders that the filing of an amendment or supplement thereto is required, except such Prospectus as so amended or supplemented; or (ii) any violation by the Company of any other federal or state securities laws or regulations applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration statementregistration. With respect Notwithstanding the foregoing provisions of this Section 12(a), the Company shall not be liable to any such Holder or underwriter or to any other indemnified party under the indemnity agreement in this Section 12(a) for any Losses that arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus if either: (i) (A) such Holder or underwriter failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Holder or underwriter to the Person asserting the claim from which such Losses arise and (B) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission; or (ii) (A) such untrue statement or alleged untrue statement or omission or alleged omission is corrected in the information furnished an amendment or supplement to the Prospectus and (B) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented as required hereunder, such Holder or underwriter thereafter fails to deliver such Prospectus, as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of Registrable Securities by such Selling Holder expressly for use in or underwriter to the Person asserting the claim from which such registration statementLosses arise. Such rights to indemnity and reimbursement of expenses shall survive the transfer of the Registrable Securities by such indemnified party.
(b) In connection with any Registration Statement filed pursuant to this Agreement, such Selling each Holder shall of Registrable Securities to be covered thereby shall, severally and not jointly with any other Holders, indemnify and hold harmless each underwriterharmless, to the fullest extent permitted by law, the Company (including its directors, officers, employees and agents)Company, each other Holder (including its partners (including partners Person, if any, who participates as an underwriter in any offering and sale of partners and stockholders of such partners) and directors, officers, employees and agents of any of them) whose securities are so registered, Registrable Securities and each person Person, if any, who controls any of them the Company or such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and their respective directors, trustees, officers, partners, agents, employees and affiliates, against all Losses incurred by such party pursuant to any and all lossesactual action, claimssuit, damages, expenses and liabilities, joint proceeding or several, to which theyinvestigation arising out of or based upon any untrue or alleged untrue statement of a material fact contained in, or any omission or alleged omission of them, may become subject under the Securities Acta material fact required to be stated in, the Exchange Act Registration Statement, Prospectus or other federal preliminary Prospectus or state statutory law any amendment or regulationsupplement to any of the foregoing or necessary to make the statements therein (in case of a Prospectus or preliminary Prospectus, at common law or otherwise in the light of the circumstances then existing) not misleading, but only to the same extent provided that any such untrue statement or omission is made in reliance on and in conformity with information with respect to such Holder furnished in writing to the immediately preceding sentence. In no eventCompany by such Holder or its counsel specifically for use therein; provided, however, that no Holder shall be required to indemnify the liability of a Selling Holder for indemnification Company or any other indemnified party under this Section 9.6(a12(b) with respect to any amount in its capacity as such (and not in its capacity as an officer or director excess of the Companyamount of the total net proceeds received by such Holder from sales of the Registrable Securities of such Holder under such Registration Statement.
(c) exceed Any Person entitled to indemnification hereunder agrees to give prompt written notice to the lesser indemnifying party after the receipt by such indemnified party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such indemnified party may claim indemnification or contribution pursuant to this Agreement, provided that failure to give such notification shall not affect the obligations of the indemnifying party pursuant to this Section 12 except to the extent the indemnifying party shall have been actually and 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 of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, 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 legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between the indemnifying party and such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall not be liable for the fees and expenses of (i) that proportion more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the total of such lossesRegistrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), claims, damages or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold by such Selling Holder or (ii) more than one counsel for the proceeds received underwriters in an Underwritten Offering or (iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. 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 counsel for all parties indemnified by such Selling Holder from its sale indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, based on the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel, provided that the indemnifying party shall not be liable for the fees and expenses of (i) more than one counsel for all Holders of Registrable Securities who are indemnified parties, selected by the Holders of a Majority of the Registrable Securities who are indemnified parties (which selection shall be reasonably satisfactory to the Company), (ii) more than one counsel for the underwriters in an Underwritten Offering or Founder Securities(iii) more than one counsel for the Company, in each case in connection with any one action or separate but similar or related actions. No indemnifying party, in defense of any such action, suit, proceeding or investigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or entry into any settlement which does not include as an unconditional term thereof the case may be) under giving by the claimant or plaintiff to such registration statementindemnified party of a release from all liability in respect to such action, suit, proceeding or investigation to the extent such liability is covered by the indemnity obligations set forth in this Section 12. No indemnified party shall consent to entry of any judgment or entry into any settlement without the consent of each indemnifying party.
(bd) If the indemnification from the indemnifying party provided for in this Section 9.6(a) above for any reason 12 is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in respect of to any losses, claims, damages, expenses or liabilities referred to thereinLosses, then each the indemnifying party under this Section 9.6party, in lieu of indemnifying such indemnified party thereunderparty, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) Losses 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 and Founder Securities, as applicable, 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, the other Selling Holders indemnifying party and the underwriters indemnified party in connection with the statements or omissions actions which resulted in such losses, claims, damages, expenses or liabilitiesLosses, as well as any other relevant equitable considerations. The relative benefits ; provided, however, that no Holder shall be required to contribute any amount in excess of the amount of the total net proceeds received by the Company, the Selling Holders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds such Holder 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 sales of the Registrable Securities and Founder Securities, as applicableof the Holder under the applicable Registration Statement. The relative fault of the Company, the Selling Holders such indemnifying party and the underwriters indemnified party shall be determined by reference to, among other things, whether the any action in question, including any untrue statement 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 Companyby, the Selling Holders such indemnifying party or the underwriters 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.
(c) The Company, the Selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9.6(b) were determined payable by pro rata or per capita allocation or by any other method of allocation which does not take account a party as a result of the equitable considerations Losses referred to above shall be deemed to include, subject to the limitations set forth in the immediately preceding paragraph. In no eventSection 12(c), however, shall a Selling Holder be required to contribute any amount under this Section 9.6(b) in excess of the lesser of (i) that proportion of the total of such losses, claims, damages legal or liabilities indemnified against equal to that proportion of the total securities sold under such registration statement which is being sold other fees and expenses reasonably incurred by such Selling Holder indemnified party in connection with any investigation or (ii) the proceeds received by such Selling Holder from its sale of Registrable Securities or Founder Securities, as the case may be, under such registration statementproceeding. No person found 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 found guilty of such fraudulent misrepresentation.
(d. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) The amount paid were determined by an indemnifying party pro rata allocation or payable to an indemnified party as a result by any other method of allocation that does not take into account the losses, claims, damages and liabilities consideration referred to in this Section 9.6 12(d). If indemnification is available under this Section 11, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying parties or indemnified party or any other equitable consideration provided for in this Section 12(d).
(e) The provisions of this Section 12 shall be deemed in addition to include, subject any liability which any indemnifying party may have 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 and shall survive the same are incurred. termination of this Agreement.
(f) The indemnification and contribution provided for required by this Section 9.6 12 shall remain in full force and effect regardless be made by periodic payments of the amount thereof during the course of any investigation made by action, suit, proceeding or on behalf of the indemnified parties investigation, as and when invoices are received or any officer, director, employee, agent or controlling person of the indemnified parties. Any indemnification of legal fees and costs pursuant to this Section 9.6 shall be paid by the indemnifying party when and as such fees and costs Losses are incurred by the indemnified partyincurred.
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