Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement: 6.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or (ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders. 6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder. 6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party. 6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6: (i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. (ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. 6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4. 6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 2 contracts
Sources: Registration Rights Agreement (Entercom Communications Corp), Stock Purchase Agreement (Entercom Communications Corp)
Indemnification; Contribution. If (a) In connection with any registration of Registrable Securities are included in a registration statement under this Agreement:
6.1. To pursuant to Section 2.01, Section 2.02 or Section 2.03 hereof, Parent agrees to indemnify and hold harmless, to the fullest extent permitted by applicable lawLaw, the Company shall indemnify Stockholder, its Affiliates, directors, officers and hold harmless stockholders and each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, Person who controls such Selling Holder, underwriter or Agent Stockholder within the meaning of either Section 15 of the Securities ActAct or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities liabilities, judgments, actions and expenses (including reasonable attorneys’ fees) joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred several caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement any part of any Registration Statement or prospectus, including any preliminary prospectus or final prospectus used in connection with the Registrable Securities or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities ActIssuer FWP, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of a prospectus, in the light of the circumstances under which they were made, ) not misleading; providedprovided that Parent will not be required to indemnify any Indemnified Person for any losses, howeverclaims, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of damages, liabilities, judgments, actions or expenses resulting from any such loss, claim, damage, liability untrue statement or expense omission if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned untrue statement or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs omission was made in reliance upon on and in conformity with written information with respect to any Indemnified Person furnished to the Company Parent in writing by the indemnified party Stockholder expressly for use in therein.
(b) In connection with such registrationany Registration Statement, preliminary or final prospectus, or (y) the failure of any person entitled Issuer FWP, Stockholder agrees to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law)indemnify Parent, a copy of any registration statementits Directors, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder its officers who sign such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees Registration Statement and each person Person, if any, who controls such persons Parent (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from Parent to Stockholder, but only with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant information with respect to any actual or threatened action, suit, proceeding or investigation, or Indemnified Person furnished to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, Parent in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished writing by such Selling Holder or its Representatives or controlling persons Stockholder expressly for use in connection with such registrationRegistration Statement, preliminary or final prospectus, or Issuer FWP.
(c) In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 2.08(a) or (b), such Person (hereinafter called the “indemnified party”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing; provided, however, provided that (x) the indemnification required by this Section 6.2 failure to give such notice shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to relieve the indemnifying party a written notice of its obligations pursuant to this Agreement except to the commencement thereof and extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit 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 given notice, to assume the defense thereof of such claim, action or proceeding with counsel reasonably satisfactory to the partiesindemnified party; providedand (iii) pay the fees and disbursements of such counsel related to such claim, howeveraction or proceeding. In any such claim, that an action or proceeding, any indemnified party shall will have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, but the fees and disbursements and expenses unless representation of such counsel will be at the expense of such indemnified party by the counsel retained by unless (A) the indemnifying party and the indemnified party have mutually agreed to the retention of such counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel, with a copy provided to Parent, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing conflicting interests between such indemnified party and any other party represented by such counsel in such proceeding them or (in which case C) the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right has failed to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability employ counsel reasonably satisfactory to the indemnified party under this Section 6 to the extent of such prejudiceparty. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, It is understood that the indemnifying party shall be permitted to participate will not, in connection with any claim, action or proceeding or related claims, actions or proceedings in the defense thereof with its own counsel and at its own expense. No indemnifying party shall same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party will not be liable for any settlement of any actionclaim, action or proceeding or claim effected without the its written consent of the indemnifying party, (which consent shall not be unreasonably withheld), conditioned but if such claim, action or delayedproceeding is settled with such consent or if there has been a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall will, without the prior written consent to of the indemnified party, effect any settlement of any action, pending or threatened proceeding in respect of which any indemnified party is or claim without the written consent of the indemnifying could have been a party and indemnity could have been sought hereunder by such indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to unless such settlement includes an unconditional release of such indemnified party of an unconditional release from all liability in respect on claims that are the subject matter of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyproceeding.
6.4. (d) If the indemnification required by provided for in this Section 6 2.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities liabilities, judgments, actions or expenses referred to in this Section 6:
(i) The 2.08, then the indemnifying party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities liabilities, judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of Parent, on the one hand, and Stockholder, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall party will be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed taken by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall will be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.22.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iie) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 2.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i2.08(d). No Person that is guilty of “fraudulent misrepresentation misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 2.08(e), Stockholder shall not be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds received by Stockholder with respect to the Registrable Securities exceed the greater of (A) the amount paid by Stockholder for its Registrable Securities and (B) the amount of any damages which Stockholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each Stockholder’s obligation to contribute pursuant to this Section 2.08 is several in proportion to the respective number of Registrable Securities held by such Stockholder hereunder and not joint.
6.5(f) For purposes of this Section 2.08, each controlling person of a Stockholder shall have the same rights to contribution as such Stockholder, and each officer, Director and Person, if any, who controls Parent within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as Parent, subject in each case to the limitations set forth in the immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 2.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from who contribution may be sought from any obligation it or they may have under this Section 2.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any action or claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld.
(g) If indemnification is available under this Section 62.08, the indemnifying parties shall party will indemnify each indemnified party to the full extent provided in this Section 6 Sections 2.08(a) and (b) without regard to the relative fault of such said indemnifying party or indemnified party or any other equitable consideration referred to provided for in Section 6.42.08(d) or (e).
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.111.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, ▇▇. ▇▇▇▇ against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, in each case solely including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto; or
(ii) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registrationstatements therein not misleading; provided, however, that (x) the indemnification required by this Section 6.2 11.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, Company (which consent shall not be unreasonably withheld), conditioned nor shall the Company be liable in any such case for any such loss, claim, damage, liability or delayedexpense to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with information furnished in writing to the Company by the indemnified party expressly for use in connection with such registration.
11.2. To the extent permitted by applicable law, ▇▇. ▇▇▇▇ 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 registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such losses, claims, damages, liabilities and expenses 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 by ▇▇. ▇▇▇▇ in writing expressly for use in connection with such registration; provided, however, that (x) any indemnification required by this Section 11.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of ▇▇. ▇▇▇▇ (which consent shall not be unreasonably withheld) and (y) in no event shall the amount of any indemnity under this Section 6.2 11.2 exceed the gross proceeds from the applicable offering received by such Selling Holder▇▇. ▇▇▇▇.
6.311.3. Promptly after receipt by an indemnified party under this Section 6 11 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 611, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, with the fees and disbursements and expenses unless 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 11 to the extent of such prejudiceprejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 11. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own counsel 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 exist between such indemnified party and at its own expense. No any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be liable obligated to an indemnified party for any settlement of any action, proceeding or claim without pay the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect fees and expenses of such action, proceeding additional counsel or claim or that requires an admission of wrongdoing by any indemnified partycounsels).
6.411.4. If the indemnification required by this Section 6 11 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 611:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 11.1 and Section 6.211.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 11.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i11.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.511.5. If indemnification is available under this Section 611, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 11 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.411.4.
6.611.6. The obligations of the Company and the Selling Holders of Registrable Securities ▇▇. ▇▇▇▇ under this Section 6 11 shall survive the completion termination of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Registration Rights Agreement (CDW Computer Centers Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement(a) The Company agrees:
6.1. To the extent permitted by applicable law, the Company shall (i) to indemnify and hold harmless each Selling Holder, Underwriter and each underwriter or Agent in any underwritten or agented offering, each Personperson, if any, who controls such Selling Holder, underwriter or Agent Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, damages or liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which such Underwriter or any of the foregoing Persons such controlling person may become subject under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such losses, claims, damages, damages or liabilities and expenses (or actions or proceedings in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a any material fact contained in such registration statement (A) the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus or prospectusany amendment or supplement thereto, including (B) any preliminary prospectus or final free writing prospectus or any “issuer free writing prospectusinformation” as such term is defined in filed or required to be filed pursuant to Rule 433 433(d) under the Securities Act, or (C) any amendments or supplements thereto; or
Road Show, (ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, howeveror (iii) any alleged act or failure to act by any Underwriter in connection with, that or relating in any manner to, the indemnification required by this Section 6.1 shall not apply Securities or the offering contemplated hereby, and which is included as part of or referred to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent action arising out of or based upon matters covered by clause (i) or (ii) above; provided, however, that the Company (which consent shall will not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for to the extent that any such loss, claim, damage, liability, damage or expense solely to the extent that it liability arises out of or is based upon (xan untrue statement or alleged untrue statement, or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus, or such amendment or supplement, or any free writing prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) a Violation which occurs under the Securities Act or any Road Show in reliance upon and in conformity with written information furnished to the Company by or through the indemnified party Representative specifically for use in the preparation thereof, such information being the selling concession figure in the first paragraph under the caption “Underwriting—Discounts, Commissions and Expenses” and the information set forth under the caption “Underwriting—Price Stabilization, Short Positions and Penalty Bids” concerning stabilizing transactions, short sales and passive market making in the Preliminary Prospectus and Prospectus (the “Underwriter Information”).
(ii) to reimburse each Underwriter and each such controlling person upon demand for any legal or other out-of-pocket expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending any such registrationloss, claim, damage or (y) liability, action or proceeding or in responding to a subpoena or governmental inquiry related to the failure offering of the Securities, whether or not such Underwriter or controlling person is a party to any person action or proceeding. In the event that it is finally judicially determined that the Underwriters were not entitled to indemnification hereunder receive payments for legal and other expenses pursuant to deliver or make available to a purchaser this subparagraph, the Underwriters will promptly return all sums that had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company, each of Registrable Securities (to its directors, each of its officers who have signed the extent required by law)Registration Statement and each person, a copy of any registration statementif any, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that who controls the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damagesdamages or liabilities to which the Company or any such director, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationofficer, or to which any of the foregoing Persons controlling person may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such losses, claims, damages, damages or liabilities and expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any Violationuntrue statement or alleged untrue statement of any material fact contained in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus or any amendment or supplement thereto, in each case solely any free writing prospectus or Road Show, (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the extent that statements therein, in the light of the circumstances under which they were made, not misleading; and will reimburse any legal or other expenses reasonably incurred by the Company or any such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives director, officer, or controlling persons expressly for use person in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of investigating or defending any such loss, claim, damage, liability liability, action or expense proceeding; provided, however, that each Underwriter will be liable in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission has been made in the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus or any amendment or supplement thereto, in any free writing prospectus, or Road Show in reliance upon and in conformity with the Underwriter Information.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing. No indemnification provided for in Section 8(a) or (b) shall be available to any party who shall fail to give notice as provided in this Subsection if settlement is effected without the consent party to whom notice was not given was unaware of the relevant Selling Holder of Registrable Securitiesproceeding to which such notice would have related and was materially prejudiced by the failure to give such notice, which consent but the failure to give such notice shall not be unreasonably withheld, conditioned relieve the indemnifying party or delayed, and (y) in no event shall parties from any liability which it or they may have to the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this for contribution or otherwise than on account of the provisions of Section 6 of notice 5(a) or (b). In case any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement of any actionthereof, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right be entitled to participate in, therein and, to the extent the indemnifying party so desiresthat it shall wish, jointly with any other indemnifying party similarly given noticenotified, to assume the defense thereof thereof, with counsel reasonably satisfactory to such indemnified party and shall pay as incurred the parties; providedreasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, however, that an any indemnified party shall have the right to retain separate its own counsel in any such actionat its own expense. Notwithstanding the foregoing, claim the indemnifying party shall pay as incurred (or proceeding within 30 days of presentation) the reasonable fees and to participate expenses of the outside counsel retained by the indemnified party in the defense thereof, provided, that event (i) the indemnifying party and the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation have mutually agreed to the retention of such indemnified party by counsel, (ii) the counsel retained by named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding them or (in which case iii) the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right failed to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice and employ counsel reasonably acceptable to the indemnifying indemnified party within a reasonable period of time following the after notice of commencement of any such the action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, It is understood that the indemnifying party shall be permitted to participate not, in connection with any proceeding or related proceedings in the defense thereof with its own counsel same jurisdiction, be liable for the reasonable fees and at its own expenseexpenses of more than one separate firm (in addition to any local outside counsel) for all such indemnified parties. No Such firm shall be designated in writing by you in the case of parties indemnified pursuant to Section 5(a) and by the Company in the case of parties indemnified pursuant to Section 5(b). The indemnifying party shall not be liable to an indemnified party for any settlement of any actionproceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, proceeding the indemnifying party agrees to indemnify the indemnified party from and against any loss or claim liability by reason of such settlement or judgment. In addition, the indemnifying party will not, without the prior written consent of the indemnifying indemnified party, which consent shall not be unreasonably withheld, conditioned settle or delayed. No indemnifying party shall compromise or consent to any settlement the entry of any actionjudgment in any pending or threatened claim, action or proceeding of which indemnification may be sought hereunder (whether or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned any indemnified party is an actual or delayed, that does not include the giving potential party to such indemnified party of claim, action or proceeding) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability in respect arising out of such actionclaim, proceeding action or claim or that requires an admission of wrongdoing by any indemnified partyproceeding.
6.4. (d) If the indemnification required by provided for in this Section 6 from the indemnifying party is unavailable to or insufficient to hold harmless an indemnified party hereunder under Section 5(a) or (b) above in respect of any losses, claims, damages, damages or liabilities (or expenses actions or proceedings in respect thereof) referred to in this Section 6:
(i) The therein, then each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities (or expenses actions or proceedings in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the indemnifying party Company on the one hand and indemnified parties the Underwriters on the other in connection with the actions that statements or omissions which resulted in such losses, claims, damagesdamages or liabilities, liabilities (or expensesactions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, 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, such indemnifying party by the Issuer on the one hand or indemnified parties, the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Subsection were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Subsection. The amount paid or payable by a an indemnified party as a result of the losses, claims, damages, damages or liabilities and expenses (or actions or proceedings in respect thereof) referred to above in this Subsection shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any investigation such action or proceeding.
claim. Notwithstanding the provisions of this Subsection, (i) no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions applicable to the Securities purchased by such Underwriter and (ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this Subsection to contribute are several in proportion to their respective underwriting obligations and not joint.
6.5. If indemnification is available (e) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus or any supplement or amendment thereto, any free writing prospectus, or Road Show each party against whom contribution may be sought under this Section 6hereby consents to the jurisdiction of any court having jurisdiction over any other contributing party, agrees that process issuing from such court may be served upon him or it by any other contributing party and consents to the service of such process and agrees that any other contributing party may join him or it as an additional defendant in any such proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section shall be paid by the indemnifying parties shall indemnify each indemnified party to the full extent provided indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The indemnity and contribution agreements contained in this Section 6 without regard to and the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations representations and warranties of the Company set forth in this Agreement shall remain operative and the Selling Holders in full force and effect, regardless of Registrable Securities under this Section 6 shall survive the completion (i) any investigation made by or on behalf of any offering Underwriter or any person controlling any Underwriter, the Company, its directors or officers or any persons controlling the Company, (ii) acceptance of Registrable any Securities pursuant to a registration statement under and payment therefor hereunder, and (iii) any termination of this Agreement. A successor to any Underwriter, and otherwise until or to the expiration Company, its directors or officers, or any person controlling the Company, shall be entitled to the benefits of the applicable statute of limitationsindemnity, contribution and reimbursement agreements contained in this Section.
Appears in 1 contract
Indemnification; Contribution. If (a) In the event of any Registrable registration of any equity securities of the Corporation under the Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by Act or applicable lawCanadian securities Laws, the Company shall Corporation will, and hereby does agree to, indemnify and hold harmless each Selling Holderharmless, in the case of any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, the seller of any Registrable Shares covered by such registration statement or prospectus, its respective directors and officers, partners and members, each other Person who participates as an underwriter in the offering or Agent in any underwritten or agented offeringsale of such securities, and each other Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus seller or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several)expenses, including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of the foregoing Persons them may otherwise become subject under the Securities Act, the Exchange Act applicable Canadian securities Laws or other federal or state lawsotherwise, insofar as such losses, claims, damages, liabilities and or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any Violationuntrue statement or alleged untrue statement of any material fact contained in any registration statement or prospectus under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus included therein or filed with applicable Canadian securities regulatory authorities, or any amendment or supplement thereto, or any document incorporated by reference therein, 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 not misleading; provided, however, that the Corporation shall not be liable in each any such case solely to the extent that any such Violation occurs loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (x) an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus or amendment or supplement thereto, in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly to the Corporation for use in connection with the preparation thereof by such registration; providedseller or underwriter, howeveras the case may be, or (y) an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus but notified to such seller and underwriter prior to any sale or other disposition of Registrable Shares and subsequently corrected by the Corporation in any final prospectus, amendment or supplement made available to such seller or underwriter but which final prospectus, amendment or supplement was not used by such seller or underwriter in the sale or other disposition of Registrable Shares that (x) the indemnification required by this Section 6.2 shall not apply gave rise to amounts paid in settlement of any such loss, claim, damage, liability (or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim action or proceeding and to participate in the defense respect thereof, provided, that the indemnified party ) or expense. This indemnity shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due in addition to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyCorporation may otherwise have.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Registration Rights Agreement (Odyssey Re Holdings Corp)
Indemnification; Contribution. If any Registrable ----------------------------- Securities are included in a registration statement under this Agreement:
6.17.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner partner, employee and employee, agent of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):by
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(iii) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 7.1 shall -------- ------- ----------- not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person Person who controls such persons Persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders; provided, however, that the indemnity agreement contained in -------- ------- this Section 7.1 shall not apply to any underwriter to the extent that any such ----------- loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, included in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to a purchaser of a Registrable Security subject to such registration at or prior to the confirmation of sale to such Person if such underwriter was under an obligation to deliver such final prospectus and failed to do so.
6.27.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, employee and employee agent of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.-------- -------
Appears in 1 contract
Sources: Registration Rights Agreement (Moneygram Payment Systems Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law(a) The Company agrees to indemnify, the Company shall indemnify defend and hold harmless each Selling Initial Purchaser, each Holder, each underwriter or Agent in any underwritten or agented offering, each person (a “Controlling Person”), if any, who controls such Selling Holder, underwriter any Initial Purchaser or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to Act and the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable lawrespective officers, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each partners, employees, representatives and agents of its officers who shall have signed any Initial Purchaser, the registration statementHolders or any Controlling Person (each, each Person who controls the Company within the meaning of the Securities Acta “Holder Indemnified Party”), each underwriter or Agent in any underwritten or agented offering from and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses liability, claim or any actions in respect thereof (joint and several), including attorneys’ fees and disbursements and expenses the reasonable cost of investigation, incurred by ) which such party pursuant to any actual Holder Indemnified Party may incur or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject to under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such lossesloss, claimsdamage, damagesexpense, liabilities and expenses arise liability, claim or action arises out of or are is based upon any Violationuntrue 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 each case solely to the extent that light of the circumstances under which such Violation occurs in reliance upon statements were made, not misleading, and in conformity with written information furnished the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by such Selling Holder or its Representatives or controlling persons expressly for use them in connection with investigating or defending any such registrationloss, damage, expense, liability, claim or action in respect thereof; provided, however, that (x) the Company shall not be required to provide any indemnification required by pursuant to this Section 6.2 shall not apply to amounts paid 6(a) in settlement of any such case insofar as any such loss, claimdamage, 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; provided further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Holder 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, liability expense, liability, claim or expense 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, 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 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 settlement is effected without required by the consent Securities Act, of the relevant Selling 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 Registrable Securitiessuch Prospectus in a timely manner so as to permit such delivery; and, subject to the limitation set forth in the immediately preceding clause, each Holder shall reimburse, as incurred, the 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 consent shall not be unreasonably withheld, conditioned such Holder may otherwise have to the Company or delayed, and (y) in 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 any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling HolderHolder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
6.3. Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of (c) If any action, suitsuit or proceeding (each, proceedinga “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), investigation or threat thereof made such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing for which such indemnified party may make a claim under this Section 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof institution of such Proceeding and the indemnifying party 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the partiesof such Proceeding; provided, however, that an indemnified party 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 retain separate employ its own counsel in any such actioncase, claim or proceeding but the fees and to participate 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 thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by 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 retained by the indemnifying party would that there may be inappropriate due one or more defenses available to actual it that are different from, additional to or potential differing interests between in conflict with those available to such indemnified party and any other party represented by such counsel in such proceeding Indemnifying Party (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and Indemnifying Party shall not have the right to assume direct that portion of the defense of such action, claim or proceeding Proceeding on behalf of the Indemnified Party, but such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if Indemnifying Party may employ counsel and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to 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 its own 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 its own expense. No indemnifying party 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 to an indemnified party for any settlement of any actionProceeding 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, proceeding or claim (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 the indemnifying partyany Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to effect any settlement of any actionpending 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, proceeding or claim without unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the written consent subject matter of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that such Proceeding and does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing fault or culpability or a failure to act by any indemnified partyor on behalf of such Indemnified Party.
6.4. (d) If the indemnification required by provided for in this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder 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, liabilities expenses, liabilities, claims or expenses actions referred to in this Section 6:
(i) The indemnifying partytherein, then each applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities expenses, liabilities, claims or expenses 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 hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party Company, on the one hand, and indemnified parties of the Holders or the Initial Purchasers, on the other hand, in connection with the actions that statements or omissions which resulted in such losses, claims, damages, liabilities expenses, liabilities, claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company, on the one hand, and indemnified parties of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by, such indemnifying party by the Company or indemnified parties, by the Holders or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any investigation or proceedingProceeding.
(iie) The parties hereto Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6.4 6 were determined by pro rata allocation or by any other method of allocation that which does not take into account of the equitable considerations referred to in Section 6.4(i)6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under The Holders’ respective obligations to contribute pursuant to this Section 6, the indemnifying parties shall indemnify each indemnified party 6 are several in proportion to the full extent 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 without regard are not exclusive and shall not limit any rights or remedies which may otherwise be available to the relative fault of such indemnifying party or any indemnified party at law or any other equitable consideration referred to in Section 6.4equity.
6.6. (f) The obligations of the Company indemnity and the Selling Holders of Registrable Securities under contribution provisions contained in this Section 6 shall survive the completion remain operative and in full force and effect regardless of (i) any offering termination of Registrable Securities pursuant to a registration statement under this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and otherwise until (iii) the expiration sale of the applicable statute of limitationsany Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To Yatra Cayman and Yatra India shall jointly and severally indemnify and defend the extent permitted by applicable lawInvestors and their shareholders, partners, members, managers, directors, officers, employees, agents, attorneys, legal counsel and affiliates (collectively, the Company shall indemnify “Indemnified Persons”) against and hold each Indemnified Person harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against from any and all liabilities, obligations, losses, damages, costs, expenses, claims, damagespenalties, liabilities actions, judgments, disbursements of any kind or nature whatsoever, interest, fines, cleanup costs, settlements, costs of preparation and investigation, costs incurred in enforcing this indemnity and reasonable attorneys’ and legal counsel’s fees and expenses (joint or severalcollectively, “Losses”), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which that any of the foregoing Indemnified Persons may incur, suffer, sustain or become subject under to arising out of, relating to, or due to (a) any material inaccuracy or breach of any of the Securities Actrepresentations and warranties of Yatra India contained in this Agreement or in any certificate delivered hereunder, or (b) the Exchange Act nonfulfillment or breach of any covenant, undertaking, agreement or other federal obligation of Yatra India contained in this Agreement or state lawsin any certificate delivered hereunder; provided that such indemnity shall not, insofar as to any Indemnified Person, be available to the extent such losses, claims, damages, liabilities and expenses Losses arise out of the gross negligence or are based upon any willful misconduct of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact such Indemnified Person. The indemnities contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 10.14 shall not apply to amounts paid in settlement survive the termination of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4Agreement. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to provided for in this Section 6:
(i) The indemnifying party10.14 is prohibited under applicable law, rule or regulation as to an Indemnified Person, then Yatra Cayman and Yatra India, in lieu of indemnifying such indemnified partythe Indemnified Person, shall will contribute to the amount paid or payable by such indemnified party the Indemnified Person as a result of such losses, claims, damages, liabilities or expenses the Losses in such proportion as is appropriate to reflect the relative fault of Yatra India, on the indemnifying party one hand, and indemnified parties of the Indemnified Person, on the other, in connection with the actions that events or circumstances which resulted in such losses, claims, damages, liabilities or expenses, the Losses as well as any other relevant equitable considerations. The relative fault indemnification obligations of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available Yatra India under this Section 6, the indemnifying parties Agreement shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault cease immediately upon exit of such indemnifying party Pandara Trust by way of swap or indemnified party or any other equitable consideration referred to in Section 6.4sale of Shares.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Share Subscription Cum Shareholders Agreement (Yatra Online, Inc.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the (a) The Company shall will indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offeringof such Holders’ officers, directors, partners, agents, employees and representatives, each Personunderwriter, if any, who controls and each person controlling such Selling Holder, Holder or underwriter or Agent within the meaning of Section 15 of the Securities Act, and with respect to each officerregistration, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Personsqualification or compliance effected pursuant to this Agreement, against any and all lossesexpenses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claimsdamages and liabilities (or actions, damages, liabilities and expenses arise proceedings or settlements in respect thereof) arising out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) on any untrue statement (or alleged untrue statement statement) of a material fact contained in such registration statement or any prospectus, offering circular or any other document (including any preliminary prospectus related registration statement, notification or final prospectus the like) incident to any such registration, qualification or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcompliance, or based on any amendments or supplements thereto; or
omission (ii) the omission or alleged omission omission) to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, and will reimburse each such indemnified person for any legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability or action; provided, however, that the indemnification required Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission based upon written information furnished to the Company by such Holder or such underwriter and stated to be specifically for use therein. It is agreed that the indemnity agreement contained in this Section 6.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense action if such settlement is effected without the consent of the Company (which consent shall has not be been unreasonably withheld, conditioned withheld or delayed).
(b) Each Holder of Registrable Securities included in any registration effected pursuant to this Agreement shall indemnify the Company, nor shall each of its directors, officers, agents, employees and representatives, each underwriter, and each person who controls the Company be liable or such underwriter within the meaning of Section 15 of the Securities Act, each other participating Holder and each of their officers, directors and partners, and each person controlling such holders, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such case registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse such indemnified persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, claim, damage, liabilityliability or action, or expense solely in each case to the extent extent, but only to the extent, that it arises out of such untrue statement (or alleged untrue statement) or omission (or alleged omission) is based upon (x) a Violation which occurs made in such registration statement, prospectus, offering circular or other document in reliance upon and in strict conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee on behalf of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registrationHolder; provided, however, that (x) no Holder shall be liable hereunder for any amounts in excess of the indemnification required net proceeds received by this Section 6.2 such Holder pursuant to such registration, and (y) the obligations of such Holder hereunder shall not apply to amounts paid in settlement of any such lossclaims, claimlosses, damage, liability damages or expense liabilities (or actions in respect thereof) if such settlement is effected without the consent of the relevant Selling such Holder of Registrable Securities, (which consent shall has not be been unreasonably withheld, conditioned withheld or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder).
6.3. Promptly after receipt by an indemnified (c) Each party entitled to indemnification under this Section 6 of (the “Indemnified Party”) shall give notice of to the commencement party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 6, such indemnified party and shall deliver to permit the indemnifying party a written notice of the commencement 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 given notice, Indemnifying Party to assume the defense thereof with of any such claim or any litigation resulting therefrom through counsel approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense but the fees and disbursements of counsel to an Indemnified Party so choosing to participate shall be at the expense of such party, unless (i) the Indemnifying Party shall have failed to retain counsel for the Indemnified Party as aforesaid, or (ii) the Indemnified Party shall have reasonably satisfactory concluded that there may be reasonable defenses available to it which are different from or additional to those available to the partiesIndemnifying Party or that the interests of the Indemnified Party conflict with the interests of the Indemnifying Party; provided, however, that an indemnified party shall have the right failure of any Indemnified Party to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and give notice as provided herein shall not have relieve the right to assume the defense Indemnifying Party of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party its obligations under this Section 6 to the extent of such prejudicefailure is not prejudicial. Notwithstanding No Indemnifying Party in the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement defense of any such action, claim or proceeding if litigation shall, except with the indemnifying party does not elect consent of each Indemnified Party, consent to assume control entry of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any judgment or enter into any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release of such Indemnified Party from all liability in respect to such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with defense of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyand litigation resulting therefrom.
6.4. (d) If the indemnification required by provided for in this Section 6 from the indemnifying party is held by a court of competent jurisdiction to be unavailable to an indemnified party hereunder in Indemnified Party with respect of to any lossesloss, claimsliability, damagesclaim, liabilities damage or expenses expense referred to in this Section 6:
(i) The indemnifying partytherein, then the Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party hereunder, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesloss, claimsliability, damagesclaim, liabilities damage or expenses expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party on the one hand and indemnified parties of the Indemnified Party on the other in connection with the actions that statements or omissions which resulted in such lossesloss, claimsliability, damagesclaim, liabilities damage or expenses, expense as well as any other relevant equitable considerations; provided, however, that in any case, no Indemnifying Party shall be required to contribute an amount in excess of the net proceeds received by it from all Registrable Securities sold in the transactions related to such statements or omissions. The relative fault of such indemnifying party the Indemnifying Party and indemnified parties of the Indemnified Party shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by, such indemnifying party by the Indemnifying Party or indemnified parties, by the Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid statement or payable by a party as a result of omission.
(e) Notwithstanding the lossesforegoing, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth extent that the provisions on indemnification and contribution contained in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party an underwriting agreement entered into in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account an underwritten public offering are in conflict with the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6foregoing provisions, the indemnifying parties provisions in the underwriting agreement shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4control.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement, including a Shelf Registration:
6.19.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner and partner, employee, agent and consultant of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(iii) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 8.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, or (y) further, that the failure of indemnity agreement contained in this Section 8 shall not apply to any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (underwriter to the extent required by law)that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling Holder confirmation of sale to such registration statement, including person if such preliminary prospectus or underwriter was under an obligation to deliver such final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.29.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, and employee of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 8.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.39.3. Promptly after receipt by an indemnified party under this Section 6 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 68, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, with the fees and disbursements and expenses unless 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 8 but shall not relieve the indemnifying party of any liability that it may have to the extent of such prejudiceany indemnified party otherwise than pursuant to this Section 8. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the including any fees and disbursements and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid by to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party) ; provided, however, that if it is ultimately determined that an indemnified party is not entitled to indemnification hereunder such indemnified party shall be obligated to repay the defense, compromise and settlement of indemnifying party. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own counsel and appropriate local counsel) at its own expenseany time for all such indemnified parties. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.49.4. If the indemnification required by this Section 6 8 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 68:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerationsthe relative benefits received by indemnifying party and indemnified parties. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 8.1 and Section 6.28.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 8.4 were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i8.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.59.5. If indemnification is available under this Section 68, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 8 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.48.4.
6.69.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 8 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (National Record Mart Inc /De/)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To (a) Company will indemnify and hold harmless, to the fullest extent permitted by applicable law, the Company shall indemnify any Holder and hold harmless each Selling any underwriter for such Holder, and each underwriter or Agent in any underwritten or agented offering, each Personperson, if any, who controls the Holder or such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent from and such controlling Persons, against any and all losses, damages, claims, damagesliabilities, liabilities joint or several, costs and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or amounts paid in any settlement effected with Company's consent) to which the Holder or any of the foregoing Persons such underwriter or controlling person may become subject under the Securities Act, the Exchange Act applicable law or other federal or state lawsotherwise, insofar as such losses, damages, claims, damagesliabilities (or actions or proceedings in respect thereof), liabilities and costs or expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a any material fact contained in such the registration statement or included in the prospectus, including any preliminary prospectus as amended or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actsupplemented, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading, and Company will reimburse the Holder, such underwriter and each such controlling person of the Holder or the underwriter, promptly upon demand, for any reasonable legal or any other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third party witness in connection with such loss, claim, damage, liability, action or proceeding; provided, however, that Company will not be liable in any such case to the extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in strict conformity with written information furnished by a Holder to the managing underwriter specifically for inclusion therein; provided, further, that the indemnity agreement contained in this subsection 2.6(a) shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of Company, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the selling Holder, the underwriter or any controlling person of the selling Holder or the underwriter, and regardless of any sale in connection with such offering by the selling Holder. Such indemnity shall survive the transfer of securities by a selling Holder.
(b) Each Holder participating in a registration hereunder will indemnify and hold harmless Company, any underwriter for Company, and each person, if any, who controls Company or such underwriter, from and against any and all losses, damages, claims, liabilities, costs or expenses (including any amounts paid in any settlement effected with the selling Holder's consent) to which Company or any such controlling person and/or any such underwriter may become subject under applicable law or otherwise, insofar as such losses, damages, claims, liabilities (or actions or proceedings in respect thereof), costs or expenses arise out of or are based on (i) any untrue or alleged untrue statement of any material fact contained in the registration statement or included in the prospectus, as amended or supplemented, or (ii) the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and each such Holder will reimburse Company, any underwriter and each such controlling person of Company or any underwriter, promptly upon demand, for any reasonable legal or other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third party witness in connection with such loss, claim, damage, liability, action or proceeding; in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was so made in strict conformity with written information furnished by such Holder to the managing underwriter specifically for inclusion therein; provided, however, that the indemnification required by indemnity agreement contained in this Section 6.1 subsection 2.6(b) shall not apply to amounts paid in settlement of any such claim, loss, claim, damage, liability liability, or expense action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable SecuritiesHolder, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in . In no event shall the amount liability of any indemnity under this Section 6.2 Holder exceed the gross proceeds from the applicable offering received by such Selling HolderHolder from the offering.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 pursuant to the provisions of subsections 2.6(a) or (b) 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 6action involving the subject matter of the foregoing indemnity provisions, such indemnified party shall deliver will, if a claim thereof is to be made against the indemnifying party a written notice pursuant to the provisions of said subsections 2.6(a) or (b), promptly notify the indemnifying party of the commencement thereof thereof; but the omission to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than to the extent the party to be notified is actually prejudiced thereby. In case such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desiresthat it may wish, jointly with any other indemnifying party similarly given noticenotified, to assume the defense thereof with counsel reasonably satisfactory to the partiessuch indemnified party; provided, however, that an if the defendants in any action include both the indemnified party and the indemnifying party and there is a conflict of interests which would prevent counsel for the indemnifying party from also representing the indemnified party, the indemnified party or parties shall have the right to retain select one separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding action on behalf of such indemnified party)party or parties. The failure After notice from the indemnifying party to deliver written notice such indemnified party of its election to assume the defense thereof, the indemnifying party will not be liable to such indemnified party pursuant to the provisions of said subsections 2.6(a) or (b) for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed counsel in accordance with the provision of the preceding sentence, (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time following after the notice of the commencement of any such action, if the action and only within 15 days after written notice of the indemnified party's intention to employ separate counsel pursuant to the extent prejudicial to previous sentence, or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable will consent to an indemnified party for entry of any judgment or enter into any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of an unconditional a release from all liability in respect of to such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partylitigation.
6.4. (d) If recovery is not available under the foregoing indemnification required by this Section 6 from the indemnifying party is unavailable provisions with respect to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses a matter referred to in this Section 6:
Sections 2.6 (ia) The indemnifying partyor(b) hereof, in lieu of indemnifying such indemnified partyfor any reason other than as specified therein, shall contribute the parties entitled to indemnification by the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) terms thereof shall be entitled to contribution from any Person who to liabilities and expenses as more fully set forth in an underwriting agreement to be executed in connection with such registration. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the parties' relative knowledge and access to information concerning the matter with respect to which the claim was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6asserted, the indemnifying parties shall indemnify each indemnified party opportunity to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party correct and prevent any statement or indemnified party or omission, and any other equitable consideration referred considerations appropriate under the circumstances; provided that no party shall be required to contribute an amount in Section 6.4.
6.6. The obligations excess of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities amount it would have been required to pay pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsforegoing indemnification provisions if they had been available.
Appears in 1 contract
Indemnification; Contribution. If (a) In the event any Registrable Securities Shares are included in a registration statement under Shelf Registration Statement contemplated by this Agreement:
6.1. To the extent permitted by applicable law, the Company shall Parent shall, and it hereby agrees to, indemnify and hold harmless each Selling Holderharmless, each underwriter or Agent in any underwritten or agented offeringcause to be indemnified and held harmless, each PersonInvestor and its officers, directors, managers, partners, employees, agents, representatives, trustees and controlling Persons, if any, who controls such Selling Holder, underwriter in any offering or Agent within the meaning sale of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling PersonsRegistrable Shares, against any and all losses, claims, damages, damages or liabilities in respect thereof and expenses (joint or several), including attorneys’ reasonable fees and disbursements and expenses of investigationcounsel) or Actions in respect thereof (collectively, incurred by such party pursuant to any actual or threatened action“Claims”), suit, proceeding or investigation, or to which any of the foregoing Persons each such indemnified party may become subject under the Securities Act, the Exchange Act or other federal or state lawssubject, insofar as such lossesClaims (including any amounts paid in settlement effected with the consent of Parent as provided herein) arise out of or are based upon an untrue statement of a material fact contained in any Shelf Registration Statement, claimsor any preliminary or final prospectus contained therein, damagesor any amendment or supplement thereto, liabilities and expenses or any document incorporated by reference therein, or arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in light of the circumstances under in which they were made, not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent Parent shall not be unreasonably withheldliable to Investor (or its officers, conditioned or delayed)directors, nor shall the Company be liable managers, partners, employees, agents, representatives, trustees and controlling Persons, if any) in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises any such Claims arise out of or is are based upon (x) a Violation which occurs an untrue statement or omission made in such Shelf Registration Statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information the Required Investor Information furnished to Parent in writing by Investor or on behalf of Investor by any Representative of Investor, expressly for use therein, that is the Company subject of the untrue statement or omission. 115787666v1
(b) In the event any Registrable Shares are included in a Shelf Registration Statement contemplated by the this Agreement, Investor shall, and hereby agrees to indemnify and hold harmless Parent and its officers, directors, managers, employees, agents, representatives and controlling Persons, if any, in any offering or sale of its Registrable Shares against any Claims to which each such indemnified party for use may become subject, insofar as such Claims (including any amounts paid in connection with such registrationsettlement as provided herein), or (y) the failure Actions in respect thereof, arise out of or are based upon an untrue statement of a material fact contained in any person entitled to indemnification hereunder to deliver Shelf Registration Statement, or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein therein, or any amendments amendment or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements supplement thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Actdocument incorporated by reference therein, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violationomission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case solely only to the extent that such Violation occurs untrue statement or omission was made in reliance upon and in conformity with written information the Required Investor Information furnished to Parent in writing by such Selling Holder Investor or its Representatives or controlling persons Representative expressly for use in connection with such registrationtherein that is the subject of the untrue statement or omission; provided, however, that the liability of Investor hereunder shall be limited to an amount equal to the dollar amount of the net proceeds actually received by Investor from the sale of Registrable Shares sold by Investor pursuant to such Shelf Registration Statement or related prospectus.
(xc) Investor and Parent agree that if, for any reason, the indemnification required provisions contemplated by this Section 6.2 shall not apply 2.7(a) or Section 2.7(b) are unavailable to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by are insufficient to hold harmless an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to in this Section 6:
(i) The therein, then each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses Claims in such proportion as is appropriate to reflect the relative fault of the indemnifying party party, on the one hand, and the indemnified parties in connection party, on the other hand, with respect to the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerationsapplicable offering of securities. The relative fault of such indemnifying party and indemnified parties party shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue statement of a material fact or omission to state a material fact relates to information supplied by, by such indemnifying party or by such indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The If, however, the allocation in the first sentence of this Section 2.7(c) is not permitted by applicable Law, then each indemnifying party shall contribute to the amount paid or payable by a such indemnified party in such proportion as a result is appropriate to reflect not only such relative faults, but also the relative benefits of the lossesindemnifying party and the indemnified party, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, as well as any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 6.4 2.7(c) were to be determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in the preceding sentences of this Section 6.4(i2.7(c). The amount paid or payable by an indemnified party as a result of the Claims referred to above shall be deemed to include (subject to the limitations set forth in Section 2.8) any legal or other out-of-pocket fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Action. No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6Notwithstanding the foregoing, Investor shall not be liable to contribute any amount in excess of the indemnifying parties shall indemnify each indemnified party dollar amount equal to the full extent provided in this Section 6 without regard to sum of (i) the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of net proceeds received by Investor from the Company and the Selling Holders sale of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities Shares sold by Investor pursuant to a registration statement under this Agreementsuch Shelf 115787666v1 Registration Statement or related prospectus, and otherwise until minus (ii) any amounts paid or payable by Investor pursuant to Section 2.7(b) (except in the expiration case of the applicable statute of limitationsfraud or willful misconduct by Investor).
Appears in 1 contract
Sources: Registration Rights Agreement (Repay Holdings Corp)
Indemnification; Contribution. 5.1 If any Registrable Securities Common Shares are included in a registration statement under this AgreementExhibit A:
6.1. (a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderStockholder Party, each underwriter or Agent in any underwritten or agented offeringsuch party’s heirs (if applicable), each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, successors and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Personspermitted assigns, against any and all losses, claims, damages, liabilities and reasonable expenses (joint or several), including reasonable attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and reasonable expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “Violation”):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading; or
(iii) Any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law; ACTIVE 231358484 provided, however, that the indemnification required by this Section 6.1 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed)Company, nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, or (y) further, that the failure of indemnity agreement contained in this Section 5 shall not apply to any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (underwriter to the extent required by law)that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling Holder confirmation of sale to such registration statement, including person if such preliminary prospectus or underwriter was under an obligation to deliver such final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling HoldersStockholder Parties.
6.2. (b) To the extent permitted by applicable law, each Selling Holder Stockholder Party shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and reasonable expenses (joint and several), including reasonable attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and reasonable expenses arise out of or are based upon any ViolationViolation by such Stockholder Party, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder Stockholder Party or its Representatives or controlling persons such party’s counsel expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 5.1(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling HolderStockholder Party.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 5 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 65, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, with the fees and disbursements and expenses unless 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 ACTIVE 231358484 represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 5 but shall not relieve the indemnifying party of any liability that it may have to the extent of such prejudiceany indemnified party otherwise than pursuant to this Section 5. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the including any fees and disbursements and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid by to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party) ; provided, that such notice is accompanied by an appropriate undertaking to reimburse the defense, compromise and settlement of indemnifying party if it is ultimately determined that an indemnified party is not entitled to indemnification hereunder. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own 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 exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel and at its own expenseor counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. (d) If the indemnification required by this Section 6 5 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 65:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any Exhibit A 8 ACTIVE 231358484 other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in this Section 6.1 and Section 6.25, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 5 were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in this Section 6.4(i)5. No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. (e) If indemnification is available under this Section 65, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 5 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in this Section 6.45.
6.6. (f) The obligations of the Company and the Selling Holders of Registrable Securities Stockholder Parties under this Section 6 5 shall survive the completion of any offering of Registrable Securities Common Shares pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Sources: Agreement Regarding Common Stock (Cal-Maine Foods Inc)
Indemnification; Contribution. If (a) In connection with any registration of Registrable Securities are included in a registration statement under this Agreement:
6.1. To or Takedown Offering pursuant to Section 2.01 or Section 2.02 hereof, RealNetworks agrees to indemnify and hold harmless, to the fullest extent permitted by applicable lawLaw, the Company shall indemnify MTVN, its Affiliates, directors, officers and hold harmless stockholders and each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, Person who controls such Selling Holder, underwriter or Agent MTVN within the meaning of either Section 15 of the Securities ActAct or Section 20 of the Exchange Act (collectively, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling the “Indemnified Persons, ”) against any and all losses, claims, damages, liabilities and expenses (expenses, joint or several), several (including reasonable attorneys’ fees and disbursements and expenses of investigation, incurred fees) caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusany part of any Registration Statement, including any preliminary prospectus or final prospectus used in connection with the Registrable Securities or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities ActIssuer FWP, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of a prospectus, in the light of the circumstances under which they were made, ) not misleading; providedprovided that RealNetworks will not be required to indemnify any Indemnified Persons for any losses, howeverclaims, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of damages, liabilities or expenses resulting from any such loss, claim, damage, liability untrue statement or expense omission if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned untrue statement or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs omission was made in reliance upon on and in conformity with written any information with respect to any Indemnified Person furnished to the Company RealNetworks in writing by the indemnified party MTVN expressly for use in therein. In connection with such registration, or an underwritten offering (y) the failure of including any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by lawTakedown Offering), a copy RealNetworks will indemnify each Underwriter, the officers and directors of any registration statementsuch Underwriter, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person Person who controls such persons Underwriter (within the meaning of either the Securities Act or the Exchange Act) to the same extent as provided above with respect to the indemnification of MTVN; provided that such Underwriter agrees to indemnify RealNetworks to the same extent as provided below with respect to the indemnification of RealNetworks by MTVN.
(b) In connection with any Registration Statement, preliminary or final prospectus or Issuer FWP, MTVN agrees to indemnify RealNetworks, the Directors, its officers who sign such Registration Statement and each Person, if any, who controls RealNetworks (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from RealNetworks to MTVN, but only with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant information with respect to any actual or threatened action, suit, proceeding or investigation, or Indemnified Person furnished to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, RealNetworks in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished writing by such Selling Holder or its Representatives or controlling persons MTVN expressly for use in connection with such registration; providedRegistration Statement, howeverpreliminary or final prospectus, that or Issuer FWP.
(xc) In case any proceeding (including any governmental investigation) will be instituted involving any Person in respect of which indemnity may be sought pursuant to Section 2.08(a) or (b), such Person (hereinafter called the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any “indemnified party”) will promptly notify the Person against whom such loss, claim, damage, liability or expense if settlement is effected without indemnity may be sought (hereinafter called the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y“indemnifying party”) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have party, upon request of the right to participate inindemnified party, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly given notice, to assume the defense thereof with will retain counsel reasonably satisfactory to the parties; provided, however, that an indemnified party to represent the indemnified party and will pay the fees and disbursements of such counsel related to such proceeding; provided that failure to so notify an indemnifying party shall not relieve it from any liability which it may have hereunder, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice. In any such proceeding, any indemnified party will have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, but the fees and disbursements and expenses unless representation of such counsel will be at the expense of such indemnified party by the counsel retained by unless (i) the indemnifying party and the indemnified party will 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 indemnifying party and the indemnified party and the indemnified party will have been advised in writing by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential differing conflicting interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)them. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, It is understood that the indemnifying party shall be permitted to participate will not, in connection with any proceeding or related proceedings in the defense thereof with its own counsel same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at its own expenseany time for all such indemnified parties, and that all such reasonable fees and expenses will be reimbursed as they are incurred. No In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party shall will not be liable to an indemnified party for any settlement of any actionproceeding effected without its written consent, but if settled with such consent or if there has been a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 2.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 15 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party will not have reimbursed the indemnified party in accordance with such request or claim reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party will, without the prior written consent of the indemnifying indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to effect any settlement of any action, pending or threatened proceeding in respect of which any indemnified party is or claim without the written consent of the indemnifying could have been a party and indemnity could have been sought hereunder by such indemnified party, which consent shall not be unreasonably withheldunless such settlement is of a claim for monetary damages only, conditioned or delayed, that does not include such claim has been settled by the giving to payment of money only and such settlement includes an unconditional release of such indemnified party of an unconditional release from all liability in respect on claims that are the subject matter of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyproceeding.
6.4. (d) If the indemnification required by provided for in this Section 6 2.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The 2.08, then the indemnifying party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall party will be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed made by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall will be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.22.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iie) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 2.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i2.08(d). No Person that is guilty of “fraudulent misrepresentation misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. (f) Notwithstanding the provisions of this Section 2.08, MTVN shall not be required to make any indemnification or contribution payment, in the aggregate, in any amount in excess of the amount of the net proceeds received by MTVN with respect to the Registrable Securities.
(g) If indemnification is available under this Section 62.08, the indemnifying parties shall party will indemnify each indemnified party to the full extent provided in this Section 6 Sections 2.08(a) and (b) without regard to the relative fault of such said indemnifying party or indemnified party or any other equitable consideration referred to provided for in Section 6.42.08(d) or (e).
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Indemnification; Contribution. If (a) In the event of any Registrable registration of any securities of the Company under the Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable lawAct, the Company shall will, and hereby does, indemnify and hold harmless each Selling Holderin the case of any registration statement filed pursuant to Section 2, 3 or 4 hereof, the holder of any Registrable Securities covered by such registration statement, its directors and officers, each underwriter or Agent in any underwritten or agented offeringofficer and director of each underwriter, each Personother person who participates as an underwriter in the offering or sale of such securities and each other person, if any, who controls such Selling Holder, holder or any such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, Act against any and all losses, claims, damages, liabilities and expenses (expenses, joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which such holder or any of the foregoing Persons such director or officer or participating or controlling person may become subject under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such losses, claims, damages, liabilities and or expenses (or actions or proceedings or investigations in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(ix) any untrue statement or alleged untrue statement of a any material fact contained in such any registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as under which such term is defined in Rule 433 securities were registered under the Securities Act, any preliminary prospectus (unless, with respect to the indemnification of the officers and directors of each underwriter and each other person participating as an underwriter, any such statement is corrected in a subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or summary prospectus included therein, or any amendments amendment or supplements supplement thereto; or
, or any document incorporated by reference therein, or (iiy) the any omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, or (z) any violation by the Company of any securities laws in connection with such registration, and the Company will reimburse such holder and each such director, officer, participating person and controlling person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided, however, that the indemnification required by this Section 6.1 Company shall not apply be liable to amounts paid any seller, director, officer, participating person or controlling person in settlement of any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company in an instrument prepared by or under the indemnified party direction of such seller, director, officer, participating person or controlling person for use in connection with the preparation of such registrationdocuments, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or (y) the failure other document. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or any such director, officer, participating person entitled or controlling person and shall survive the transfer of such securities by such seller. The Company shall agree to indemnification hereunder provide for contribution relating to deliver or make available to a purchaser such indemnity as shall be reasonably requested by any seller of Registrable Securities or the underwriters.
(b) The Company may require, as a condition to the extent required by law), a copy of including any Registrable Securities in any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law statement filed pursuant to be delivered or made availableSection 2(a), provided, that the Company shall have timely delivered received an undertaking satisfactory to it from the applicable Selling Holder prospective sellers of such registration statement, including such preliminary prospectus or final prospectus contained therein securities and any amendments or supplements thereto. The Company shall also indemnify their underwriters, selling brokers, dealer managers to indemnify and similar securities industry professionals participating hold harmless (in the distribution, their officers, directors, agents same manner and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification set forth in subdivision (a) of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless this Section 7) the Company, each director of its directorsthe Company, each officer of its officers the Company who shall have signed the sign such registration statementstatement and each other person, each Person if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant with respect to any actual statement in or threatened actionomission from such registration statement, suitany preliminary prospectus, proceeding final prospectus or investigationsummary prospectus included therein, or to which any of the foregoing Persons may otherwise become subject under the Securities Actamendment or supplement thereto, the Exchange Act but only if such statement or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs omission was made in reliance upon and in conformity with written information furnished to the Company through an instrument prepared by or under the direction of such Selling Holder sellers or its Representatives or controlling persons expressly their underwriters specifically stating that it is for use in connection with the preparation of such registration; providedregistration statement, howeverpreliminary prospectus, final prospectus, summary prospectus, amendment or supplement, and provided that (xi) the obligation to provide indemnification required by pursuant to this Section 6.2 7(b) shall be several, and not apply joint and several, among such sellers and (ii) the liability of each seller hereunder shall be limited to amounts paid in settlement the proportion of any such loss, claim, damage, liability or expense if settlement which is effected without equal to the consent proportion that the public offering price of the relevant Selling Holder shares sold by such seller under such registration statement bears to the total public offering price of Registrable Securitiesall securities sold thereunder, which consent shall but not be unreasonably withheld, conditioned or delayed, and (y) in no any event shall the amount of any indemnity under this Section 6.2 to exceed the gross net proceeds from the applicable offering received by such Selling Holderseller from the sale of Registrable Securities covered by such registration statement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling person and shall survive the transfer of such securities by such sellers.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, suit, proceeding, investigation action or threat thereof made in writing for which such indemnified party may make proceeding involving a claim under referred to in the preceding subdivisions of this Section 67, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall deliver to not relieve the indemnifying party of its obligations under the preceding subdivisions of this Section 7 except to the extent that the indemnifying party is materially prejudiced as a written notice result of the commencement thereof and such failure to give notice. In case any such action is brought against an indemnified party, the indemnifying party shall have the right be entitled to participate in, and, in and to assume the extent the indemnifying party so desiresdefense thereof, jointly with any other indemnifying party similarly given noticenotified, to assume the defense thereof extent that it may wish, with counsel reasonably satisfactory to such indemnified party. After notice from the parties; providedindemnifying party to such indemnified party of its election so to assume the defense thereof, howeverthe indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) the indemnifying party shall have failed to retain counsel for the defense of such claim(s) as aforesaid, that an (ii) the indemnifying party and the indemnified party shall have mutually agreed to the right to retain retention of separate counsel in any such actionfor the indemnified party, claim or proceeding and to participate in the defense thereof, provided, that (iii) the indemnified party shall have reasonably concluded that there may be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by legal defenses available to it which are different from or additional to those available to 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume direct the defense of such action, claim or proceeding action on behalf of such the indemnified party). The failure to deliver written notice to ; provided, however, in no event shall the indemnifying party within a be liable for the reasonable time following the commencement expenses of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the more than one counsel for all indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expenseparties. No indemnifying party shall be liable will consent to an indemnified party for entry of any judgment or enter into any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of an unconditional a release from all liability in respect to such claim or litigation. The indemnifying party shall not be liable for any settlement of any proceeding effected without the written consent of such actionindemnifying party, proceeding such consent not to be unreasonably withheld or claim delayed, but if settled with such consent or that requires an admission of wrongdoing by any indemnified party.
6.4. If if there be a final judgment for the indemnification required by this Section 6 from plaintiff, the indemnifying party is unavailable agrees to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) Indemnification similar to the full extent provided that specified in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of 7 (with appropriate modifications) shall be given by the Company and the Selling Holders each seller of Registrable Securities under this Section 6 shall survive the completion with respect to any required registration or other qualification of any offering of such Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsany federal or state law or regulation.
Appears in 1 contract
Indemnification; Contribution. If (a) In connection with any registration of Registrable Securities are included in a registration statement under this Agreement:
6.1. To pursuant to Section 3.01, Section 3.02 or Section 3.03 hereof, the Company agrees to indemnify and hold harmless, to the fullest extent permitted by applicable lawLaw, the Company shall indemnify Stockholder, its Affiliates, directors, officers and hold harmless stockholders and each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, Person who controls such Selling Holder, underwriter or Agent Stockholder within the meaning of either Section 15 of the Securities ActAct or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities liabilities, judgments, actions and expenses (including reasonable attorneys’ fees) joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred several caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement any part of any Registration Statement or prospectus, including any preliminary prospectus or final prospectus used in connection with the Registrable Securities or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities ActIssuer FWP, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of a prospectus, in the light of the circumstances under which they were made, ) not misleading; provided, however, provided that the indemnification Company will not be required by this Section 6.1 shall not apply to amounts paid in settlement of indemnify any Indemnified Person for any losses, claims, damages, liabilities, judgments, actions or expenses resulting from any such loss, claim, damage, liability untrue statement or expense omission if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned untrue statement or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs omission was made in reliance upon on and in conformity with written information with respect to any Indemnified Person furnished to the Company in writing by the indemnified party Stockholder expressly for use in therein.
(b) In connection with such registrationany Registration Statement, preliminary or final prospectus, or (y) Issuer FWP, Stockholder agrees to indemnify the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law)Company, a copy of any registration statementits Directors, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (its officers who sign such Registration Statement and each Person, if the same was required by applicable law to be delivered or made available)any, provided, that who controls the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from the Company to Stockholder, but only with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each information with respect to any Indemnified Person who controls furnished to the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred writing by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons Stockholder expressly for use in connection with such registrationRegistration Statement, preliminary or final prospectus, or Issuer FWP.
(c) In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 3.08(a) or (b), such Person (hereinafter called the “indemnified party”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing; provided, however, provided that (x) the indemnification required by this Section 6.2 failure to give such notice shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to relieve the indemnifying party a written notice of its obligations pursuant to this Agreement except to the commencement thereof and extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit 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 given notice, to assume the defense thereof of such claim, action or proceeding with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall to represent the indemnified party; and (iii) pay the fees and disbursements of such counsel related to such claim, action or proceeding. In any such claim, action or proceeding, any indemnified party will have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, but the fees and disbursements and expenses unless representation of such counsel will be at the expense of such indemnified party by (without prejudice to such indemnified party’s indemnity and other rights under the counsel retained by Charter, By-Laws and applicable Law, if any) unless (A) the indemnifying party and the indemnified party have mutually agreed to the retention of such counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel, with a copy provided to the Company, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing conflicting interests between such indemnified party and any other party represented by such counsel in such proceeding them or (in which case C) the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right has failed to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability employ counsel reasonably satisfactory to the indemnified party under this Section 6 to the extent of such prejudiceparty. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, It is understood that the indemnifying party shall be permitted to participate will not, in connection with any claim, action or proceeding or related claims, actions or proceedings in the defense thereof with its own counsel and at its own expense. No indemnifying party shall same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party will not be liable for any settlement of any actionclaim, action or proceeding or claim effected without the its written consent of the indemnifying party, (which consent shall not be unreasonably withheld), conditioned but if such claim, action or delayedproceeding is settled with such consent or if there has been a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party will not have reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party shall will, without the prior written consent to of the indemnified party, effect any settlement of any action, pending or threatened proceeding in respect of which any indemnified party is or claim without the written consent of the indemnifying could have been a party and indemnity could have been sought hereunder by such indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to unless such settlement includes an unconditional release of such indemnified party of an unconditional release from all liability in respect on claims that are the subject matter of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyproceeding.
6.4. (d) If the indemnification required by provided for in this Section 6 3.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities liabilities, judgments, actions or expenses referred to in this Section 6:
(i) The 3.08, then the indemnifying party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities liabilities, judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of the Company, on the one hand, and Stockholder, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall party will be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed taken by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.such
Appears in 1 contract
Sources: Stockholder Agreement (Great Atlantic & Pacific Tea Co Inc)
Indemnification; Contribution. If (a) In connection with any registration of Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable lawSecurities, the Company shall indemnify Moelis Holdings will indemnify, defend and hold harmless each Selling SMBC Unit-Holder, its affiliates, directors, officers and SMBC Unit-Holders and each underwriter or Agent in any underwritten or agented offering, each Person, if any, person who controls such Selling Holder, underwriter or Agent SMBC Unit-Holder within the meaning of either Section 15 of the Securities ActAct or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all direct losses, claims, damages, liabilities liabilities, obligations, costs and expenses (joint or several)including, without limitation, as a result of any notices, actions, suits, proceedings, claims, demands, assessments, judgments, awards, costs, penalties, taxes and reasonable expenses, including reasonable attorneys’ and other professionals’ fees and disbursements and expenses of investigationdisbursements, incurred but excluding any consequential damages) (collectively “Losses”) caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement any part of any Registration Statement or prospectusany Prospectus, including any preliminary prospectus amendment or final prospectus supplement thereto, used in connection with the Registrable Securities or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, Issuer FWP or any amendments or supplements thereto; or
(ii) the any omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of a Prospectus, in the light of the circumstances under which they were made, ) not misleading; provided, however, that the indemnification Moelis Holdings will not be required by this Section 6.1 shall not apply to amounts paid in settlement of indemnify any Indemnified Person for any Losses resulting from any such loss, claim, damage, liability untrue statement or expense omission if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned untrue statement or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs omission was made in reliance upon on and in conformity with written information with respect to any Indemnified Person furnished to Moelis Holdings in writing by, or on behalf of, any of the Company by the indemnified party SMBC Unit-Holders expressly for use in therein.
(b) In connection with such registrationany Registration Statement, Prospectus or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law)Issuer FWP, a copy of any registration statementeach SMBC Unit-Holder, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available)jointly and severally, providedwill indemnify, that the Company shall have timely delivered to the applicable Selling Holder such registration statementdefend and hold harmless Moelis Holdings, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, its directors, agents and employees its officers and each person person, if any, who controls such persons Moelis Holdings (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from Moelis Holdings to each SMBC Unit-Holder, but only with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent information furnished to Moelis Holdings in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationwriting by, or to which on behalf of, any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling SMBC Unit-Holder or its Representatives or controlling persons any Indemnified Persons expressly for use in connection with such registrationRegistration Statement, Prospectus or Issuer FWP; and provided, further, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount liability for indemnity of any indemnity SMBC Unit-Holder under this Section 6.2 13.9(b) exceed the gross dollar amount of the proceeds from the applicable offering (net of any underwriting discount or commission or other selling expenses) received by such Selling HolderSMBC Unit-Holder from the sale of the Registrable Securities giving rise to such indemnification.
6.3. Promptly after receipt by an indemnified party under this (c) In case any claim, action or proceeding (including any governmental investigation) is instituted involving any person in respect of which indemnity may be sought pursuant to Section 6 of notice of the commencement of any action, suit, proceeding, investigation 13.9(a) or threat thereof made in writing for which such indemnified party may make a claim under this Section 613.9(b), such indemnified party shall deliver to person (the indemnifying party a written notice of “Indemnified Party”) will promptly, but in any event within 10 Business Days, notify the commencement thereof person against whom such indemnity may be sought (the “Indemnifying Party”) in writing, and the indemnifying party Indemnifying Party shall have the right to participate in, and, and to the extent the indemnifying party Indemnifying Party so desires, jointly with any other indemnifying party similarly given notice, to assume the defense thereof with counsel reasonably satisfactory to the partiesIndemnified Party; provided, howeverthat the failure of any Indemnified Party to give notice within the time limit provided herein shall not relieve the Indemnifying Party of its obligations under Section 13.9(a) or 13.9(b), except to the extent that an indemnified party shall have the right Indemnifying Party is actually and materially prejudiced by such failure to retain separate counsel in give notice. In any such actionclaim, claim action or proceeding and to participate in where the Indemnifying Party has assumed the defense thereof, providedthe Indemnified Party shall have the right, that but not the indemnified party shall be responsible for obligation, to participate in any such defense and to retain its own counsel, but the fees and disbursements expenses of such counsel will be at the expense of such Indemnified Party unless the Indemnified Party and expenses unless the Indemnified Party have been advised by counsel that representation of such indemnified party both parties by the same counsel retained by the indemnifying party would be inappropriate due to actual or potential differing conflicting interests between such indemnified party and them. It is understood that the Indemnifying Party will not, in connection with any other party represented by such counsel claim, action or proceeding or related claims, actions or proceedings in such proceeding (in which case the indemnifying party shall pay such same jurisdiction, be liable for the reasonable fees and disbursements and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Indemnified Parties and that all such reasonable fees and expenses will be reimbursed as they are incurred. In the indemnified party and shall not have case of the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement retention of any such actionseparate firm for the Indemnified Parties, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party firm will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid designated in writing by the indemnifying party) Indemnified Parties. No Indemnified Party will, without the defenseprior written consent of the Indemnifying Party, settle, compromise and settlement or offer to settle or compromise any pending or threatened proceeding in respect of which any such action, claim or proceeding if the indemnifying party does Indemnified Party is seeking indemnity hereunder. The Indemnifying Party will not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any actionclaim, action or proceeding effected without its written consent, but if such claim, action or claim proceeding is settled with such consent or if there has been a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any Loss by reason of such settlement or judgment. No Indemnifying Party will, without the prior written consent of the indemnifying partyIndemnified Party, settle, compromise or offer to settle or compromise any pending or threatened proceeding in respect of which consent shall not be unreasonably withheldany Indemnified Party is seeking indemnity hereunder, conditioned or delayed. No indemnifying party shall consent to any unless such settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of includes (i) an unconditional release of such Indemnified Party from all liability in respect connection with such proceeding, (ii) no finding or admission of any violation of law or any violation of the rights of any person by the Indemnified Party or any of its Affiliates can be made as the result of such action, proceeding or claim or and (iii) the sole relief (if any) provided is monetary damages that requires an admission of wrongdoing are reimbursed in full by any indemnified partythe Indemnifying Party.
6.4. (d) If the indemnification required by provided for in this Section 6 13.9 from the indemnifying party Indemnifying Party is unavailable to an indemnified party Indemnified Party hereunder or is insufficient in respect of any losses, claims, damages, liabilities or expenses Losses referred to in this Section 6:
(i) The indemnifying party13.9, then the Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall will contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities or expenses Losses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party Indemnifying Party and indemnified parties Indemnified Party in connection with the actions that resulted in such losses, claims, damages, liabilities or expensesLosses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of Moelis Holdings, on the one hand, and each SMBC Unit-Holder, on the other, in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that in no event shall a SMBC Unit-Holder be required by this Section 13.9(d) to contribute an aggregate amount in excess of the dollar amount of proceeds (net of underwriting discounts and commissions and other selling expenses) received by such SMBC Unit-Holder from the sale of Registrable Securities giving rise to such contribution. The relative fault of such indemnifying party Indemnifying Party and indemnified parties shall Indemnified Party will be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partiesIndemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall will be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.213.9(c), any reasonable out of pocket legal or other out of pocket fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iie) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 13.9(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i13.9(d). No Person that is person guilty of “fraudulent misrepresentation misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 13.9(e), a SMBC Unit-Holder shall not be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds received by such SMBC Unit-Holder from the sale of the Registrable Securities exceeds the amount of any damages which such SMBC Unit-Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
6.5. (f) If indemnification is available under this Section 613.9, the indemnifying parties shall Indemnifying Party will indemnify each indemnified party Indemnified Party to the full fullest extent permissible under applicable law provided in this Section 6 Sections 13.9(a) and 13.9(b) without regard to the relative fault of such indemnifying party said Indemnifying Party or indemnified party Indemnified Party or any other equitable consideration referred to provided for in Section 6.4.
6.613.9(d) or 13.9(e). The obligations of the Company and the Selling Holders of Registrable Securities Moelis Holdings under this Section 6 13.9 shall survive be in addition to any liability that Moelis Holdings may otherwise have to any Indemnified Person.
(g) Notwithstanding anything to the completion of any offering of Registrable Securities pursuant to a registration statement under contrary in this Agreement, each of the Indemnified Parties has relied on this Section 13.9, is an express third party beneficiary of this Section 13.9 and otherwise until is entitled to enforce the expiration obligations of the applicable statute of limitationsIndemnified Parties under this Section 13.9 directly against such Indemnified Parties to the full extent thereof.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.17.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner and partner, member, employee, agent, representative and attorney of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and reasonable expenses of investigation, incurred by such party Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(ia) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(iib) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(c) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 7.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or withheld nor delayed), nor shall the Company be liable to an indemnified party in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises solely out of or is solely based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the such indemnified party expressly for use in connection with such registration; provided, or (y) further, that the failure of indemnity agreement contained in this Section 7 shall not apply to any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (underwriter to the extent required by law)that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling Holder confirmation of sale to such registration statement, including person if such preliminary prospectus or underwriter was under an obligation to deliver such final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.27.2. To the extent permitted by applicable law, each Selling Holder Holder, severally and not jointly, shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, member, employee, agent, representative and employee attorney of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and reasonable expenses of investigation, incurred by such party 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, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.37.3. Promptly after receipt by an indemnified party under this Section 6 7 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 67, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, with the fees and disbursements and expenses unless 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent materially prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 7 but shall not relieve the indemnifying party of any liability that it may have to the extent of such prejudiceany indemnified party otherwise than pursuant to this Section 7. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own 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 exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel and at its own expenseor counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned withheld or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.47.4. If the indemnification required by this Section 6 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 67:
(ia) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 7.1 and Section 6.27.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 7.4 were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i7.4(a). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f11 (f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5(c) In no event shall the total of amounts paid pursuant to this Section 7.4 by any Selling Holder exceed the gross proceeds from the applicable offering received by such Selling Holder.
7.5. If indemnification is available under this Section 67, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.47.4.
6.67.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise.
7.7. Nothing contained in this Section 7 shall be deemed to give the Company the right to refuse to file any registration statement pursuant to Sections 2 or 3 or otherwise until the expiration of the applicable statute of limitationstake any action required thereunder.
Appears in 1 contract
Sources: Registration Rights Agreement (Firearms Training Systems Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.17.1. To the extent permitted by applicable law, each of the Company Trust and the Corporation, severally and not jointly, shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner and employee, employee of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto; or
(ii) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading;
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Trust, the Corporation, each of the Trustees of the Trust, each of the directors of the Corporation, each of the officers of the Trust or the Corporation who shall have signed the registration statement, each Person, if any, who controls the Trust or the Corporation within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance arises out of or is based upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons in writing expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, (which consent shall not be unreasonably withheld, conditioned or delayed, ) and (y) in no event shall the amount of any indemnity under this Section 6.2 7.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.37.3. Promptly after receipt by an indemnified party under this Section 6 7 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 67, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, with the fees and disbursements and expenses unless 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 7 to the extent of such prejudiceprejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own counsel 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 exist between such indemnified party and at its own expense. No any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be liable obligated to an indemnified party for any settlement of any action, proceeding or claim without pay the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect fees and expenses of such action, proceeding additional counsel or claim or that requires an admission of wrongdoing by any indemnified partycounsels).
6.47.4. If the indemnification required by this Section 6 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 67:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 7.1 and Section 6.27.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 7.4 were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i7.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.57.5. If indemnification is available under this Section 67, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.47.4.
6.67.6. The obligations of the Company Trust, the Corporation and the Selling Holders of Registrable Securities under this Section 6 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Prudential Insurance Co of America)
Indemnification; Contribution. If any Registrable ----------------------------- Securities are included in a registration statement under this Agreement, including a Shelf Registration:
6.18.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner and partner, employee, agent and consultant of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(iii) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 8.1 shall -------- ------- ----------- not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity -------- ------- agreement contained in this Section 8 shall not apply to any underwriter to the --------- extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or (y) an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the failure of any person entitled to indemnification hereunder to deliver final prospectus shall correct such untrue statement or make available to a purchaser of Registrable Securities (to the extent required by law)alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling Holder confirmation of sale to such registration statement, including person if such preliminary prospectus or underwriter was under an obligation to deliver such final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.28.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, and employee of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.-------- -------
Appears in 1 contract
Sources: Registration and Put Rights Agreement (Western Micro Technology Inc /De)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the (a) The Company shall agrees to indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent Shareholder and such controlling Persons, Shareholder’s Covered Persons against any and all losses, claims, damages, liabilities and liabilities, judgments, fines, penalties, charges, costs, reasonable attorneys’ fees, amounts paid in settlement or expenses (joint or several“Indemnified Damages”), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons them may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses Indemnified Damages arise out of of, or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus the Registration Statement or any “issuer free writing prospectus” as such term is defined post-effective amendment thereto or in Rule 433 any filing made in connection with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities Actare offered (“Blue Sky Filing”), or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements made therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any such registration statement or prospectus, including any preliminary prospectus, free writing prospectus or final prospectus (as amended or “issuer free writing prospectus”supplemented, if the Company files any amendment thereof or supplement thereto, and including all information incorporated by reference therein), or the omission or alleged omission to state therein any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading; provided, however(iii) any violation or alleged violation by the Company of the U.S. Securities Act, that the U.S. Exchange Act, , any other law, including any state securities law, or any rule or regulation thereunder relating to the offer or sale of Registrable Securities pursuant to a Registration Statement or (iv) any breach of this Article III (the matters in the foregoing clauses (i) through (iv) being, collectively, “Violations”). The Company shall reimburse the Indemnified Persons, promptly as such expenses are incurred and are due and payable, for any legal fees or other reasonable expenses incurred by them in connection with investigating or defending any Indemnified Damages. Notwithstanding anything to the contrary contained herein, the indemnification required by pursuant to this Section 6.1 3.6(a) shall not apply (x) to any Indemnified Damages sought by an Indemnified Person to the extent arising out of or based upon a Violation (i) which occurs in reliance upon and in conformity with information furnished in writing to the Company by such Indemnified Person expressly for use in connection with the preparation of the Registration Statement or any such amendment thereof or supplement thereto or (ii) that results from a Shareholder’s use of a defective prospectus during a Grace Period in respect of which the Company has suspended the use of such prospectus and (y) to amounts paid in settlement of any such loss, claim, damage, liability or expense Indemnified Damages if such settlement is effected without the prior written consent of the Company (Company, which consent shall not be unreasonably withheld, conditioned or delayed).
(b) In connection with any Registration Statement in which a Shareholder’s Registrable Securities are offered, nor shall such Shareholder agrees to severally and not jointly indemnify and hold harmless the Company be liable in and of its Covered Persons against any and all Indemnified Damages to which any of them may become subject insofar as such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises Indemnified Damages arise out of or is are based upon (x) a any Violation, to the extent, and only to the extent, that such Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons Shareholder expressly for use in connection with the preparation of such registrationRegistration Statement or any amendment thereof or supplement thereto, and such Shareholder will severally and not jointly reimburse any legal or other expenses reasonably incurred by an Indemnified Person in connection with investigating or defending any Indemnified Damages; provided, however, that (x) the indemnification required by indemnity contained in this Section 6.2 3.6(b) and the agreement with respect to contribution contained in Section 3.6(f) shall not apply to amounts paid in settlement of any Indemnified Damages if such loss, claim, damage, liability or expense if settlement is effected without the prior written consent of the relevant Selling Holder of Registrable Securitiessuch Shareholder; provided, which consent further, that a Shareholder shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity liable under this Section 6.2 3.6(b) for only that amount of all Indemnified Damages as does not exceed the gross net amount of proceeds from to such Shareholder as a result of the applicable offering received by sale of Registrable Securities pursuant to the Registration Statement giving rise to such Selling Holderindemnification obligation.
6.3. (c) Promptly after receipt by an indemnified party any Person entitled to indemnification under this Section 6 3.6 (each, an “Indemnified Person”) of the written threat of or notice of the commencement of any actionaction or proceeding (including any governmental action or proceeding) involving Indemnified Damages, suitsuch Indemnified Person shall, proceeding, investigation or threat thereof made in writing for which such indemnified party may make if a claim in respect thereof is to be made against any Person providing indemnity under this Section 63.6 (each, such indemnified party shall an “Indemnifying Person”), promptly deliver to the indemnifying party Indemnifying Person a written notice of the written threat of or notice of the commencement thereof of such action or proceeding. The failure to deliver written notice to the Indemnifying Person within a reasonable time of the commencement of any such action or proceeding shall not relieve such Indemnifying Person of any liability to the Indemnified Person under this Section 3.6, except to the extent that the Indemnifying Person is materially prejudiced in its ability to defend such action or proceeding as a result of such failure, and shall not relieve such Indemnifying Person of any liability other than pursuant to this this Section 3.6. In case any such action or proceeding is brought against any Indemnified Person and such Indemnified Person seeks or intends to seek indemnity from an Indemnifying Person, the indemnifying party Indemnifying Person shall have the right to participate in, and, to the extent the indemnifying party Indemnifying Person so desires, jointly with any other indemnifying party Indemnifying Person similarly given noticenoticed, to assume control of the defense thereof with counsel reasonably mutually satisfactory to the parties; providedIndemnifying Person and the Indemnified Person. In any such proceeding, howeverany Indemnified Person may retain its own counsel, but the fees and expenses of that an indemnified party counsel will be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the right to retain separate counsel retention of that counsel, (ii) the Indemnifying Person does not assume the defense of such proceeding in any such action, claim a timely manner or proceeding and to participate (iii) in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation reasonable opinion of such indemnified party by the counsel retained by the indemnifying party Indemnified Person, the representation by such counsel for the Indemnified Person and the Indemnifying Person would be inappropriate due to actual or potential differing interests between such indemnified party Indemnified Person and any other party represented by such counsel in such proceeding (proceeding, in which case the indemnifying party Indemnifying Person shall pay reasonable fees for up to one separate legal counsel for all Indemnified Persons (in addition to local counsel, if required), and such fees and disbursements and expenses of legal counsel shall be selected by the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)Indemnified Persons. The failure to deliver written notice to Indemnified Person shall reasonably cooperate with the indemnifying party within a reasonable time following the commencement Indemnifying Person in connection with any negotiation or defense of any such action, if action or proceeding or Indemnified Damages by the Indemnifying Person and only shall furnish to the extent prejudicial Indemnifying Person all information reasonably available to the indemnifying party, Indemnified Person which relates to such action or proceeding or Indemnified Damages. The Indemnifying Person shall relieve such indemnifying party of any liability keep the Indemnified Person reasonably apprised at all times as to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control status of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof or any settlement negotiations with its own counsel and at its own expenserespect thereto. No indemnifying party shall be liable to an indemnified party for any settlement of any actionIndemnifying Person shall, proceeding or claim without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall Indemnified Person consent to entry of any judgment or enter into any settlement of any action, proceeding or claim without the written consent of the indemnifying party, other compromise which consent shall not be unreasonably withheld, conditioned or delayed, that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party Indemnified Person of an unconditional a full release from all liability in with respect to such Indemnified Damages or which includes any admission as to fault, culpability or failure to act on the part of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyIndemnified Person.
6.4. If the (d) The indemnification required by this Section 6 from 3.6 shall be made by periodic payments of the indemnifying party is unavailable amount thereof during the course of the investigation or defense, as and when reasonably detailed invoices are received by the Indemnifying Person.
(e) The indemnity agreements contained herein shall be in addition to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying partyany cause of action or similar right of the Indemnified Person against the Indemnifying Person or others and (ii) any liabilities the Indemnifying Person may be subject to pursuant to applicable law.
(f) To the extent any indemnification by an Indemnifying Person is prohibited or limited by law, the Indemnifying Person agrees, in lieu of indemnifying such indemnified partyIndemnified Person, shall contribute to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 3.6(a) or Section 3.6(b), as applicable, to the amount paid or payable fullest extent permitted by such indemnified party as a result law; provided, however, that (i) no Person involved in the sale of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Registrable Securities which Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the U.S. Securities Act) in connection with such sale shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties misrepresentation and (ii) contribution by any Shareholder shall indemnify each indemnified party be limited in amount to the full extent provided in this Section 6 without regard to net amount of proceeds received by such Shareholder from the relative fault sale of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement such Registration Statement, less the amount of any damages that such Shareholder has otherwise been required to pay in connection with such sale (including any payments pursuant to this Section 3.6).
(g) The indemnification and contribution provided for under this Agreement, Agreement will be in addition to any other rights to indemnification or contribution that any Indemnified Person may have pursuant to law or contract (and otherwise until the Company and its subsidiaries shall be considered the indemnitors of first resort in all such circumstances to which this Section 3.6 applies) and will remain in full force and effect regardless of any investigation made by or on behalf of any Indemnified Person and will survive the transfer of Registrable Securities and the termination or expiration of the applicable statute of limitationsthis Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Electra Battery Materials Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To (a) Company will indemnify and hold harmless, to the fullest extent permitted by applicable law, the Company shall indemnify any Holder and hold harmless each Selling any underwriter for such Holder, and each underwriter or Agent in any underwritten or agented offering, each Personperson, if any, who controls the Holder or such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent from and such controlling Persons, against any and all losses, damages, claims, damagesliabilities, liabilities joint or several, costs and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or amounts paid in any settlement effected with Company's consent) to which the Holder or any of the foregoing Persons such underwriter or controlling person may become subject under the Securities Act, the Exchange Act applicable law or other federal or state lawsotherwise, insofar as such losses, damages, claims, damagesliabilities (or actions or proceedings in respect thereof), liabilities and costs or expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a any material fact contained in such the registration statement or included in the prospectus, including any preliminary prospectus as amended or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actsupplemented, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and Company will reimburse the Holder, such underwriter and each such controlling person of the Holder or the underwriter, promptly upon demand, for any reasonable legal or any other expenses incurred by them in connection with investigating, preparing to defend or defending against or appearing as a third party witness in connection with such loss, claim, damage, liability, action or proceeding; provided, however, that Company will not be liable in any such case to the indemnification required extent that any such loss, damage, liability, cost or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in strict conformity with written information furnished by a Holder to the managing underwriter specifically for inclusion therein; provided, further, that the indemnity agreement contained in this Section 6.1 subsection 2.6(a) shall not apply to amounts paid in settlement of any such claim, loss, claim, damage, liability or expense action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.Such indemnity
Appears in 1 contract
Indemnification; Contribution. If (a) In connection with any registration of Registrable Securities are included in a registration statement under this Agreement:
6.1. To or Takedown Offering pursuant to Sections 3.01 or 3.02, the Company agrees to indemnify and hold harmless, to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderLaw, each underwriter or Agent in any underwritten or agented offeringParticipating Stockholder, its affiliates, directors and officers and each Person, if any, Person who controls such Selling Holder, underwriter or Agent Participating Stockholder within the meaning of either Section 15 of the Securities ActAct or Section 20 of the Exchange Act (each, an “Indemnified Person”) from and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities liabilities, judgments and expenses (joint or severalincluding reasonable attorneys’ fees)(collectively, “Claims”), including attorneys’ fees and disbursements and expenses of investigation, incurred caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement any part of any Registration Statement or prospectus, including any preliminary prospectus or final prospectus used in connection with the Registrable Securities or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities ActIssuer FWP, or any amendments or supplements thereto; or
(ii) the any omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading or (iii) any violation or alleged violation by the Company of the Securities Act, not misleadingthe Exchange Act, any state securities Law or any rule or regulation promulgated under the Securities Act, or the Exchange Act or any state securities Law and relating to action required of or inaction by the Company in connection with any such registration; provided, however, that the indemnification Company will not be required by this Section 6.1 shall not apply to amounts paid in settlement of indemnify any Indemnified Person for any Claims resulting from any such loss, claim, damage, liability untrue statement or expense omission if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned untrue statement or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs omission was made in reliance upon on and in conformity with written information with respect to any Indemnified Person furnished to the Company in writing by the indemnified party any Stockholder expressly for use in therein.
(b) In connection with such registrationany Registration Statement, preliminary or final prospectus, or (y) Issuer FWP, each of the failure of any person entitled Participating Stockholders, severally and not jointly, in the offering to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law)which such Registration Statement, a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein prospectus, or any amendments or supplements thereto (Issuer FWP relates agrees to indemnify the Company, its Directors, its officers and each Person, if the same was required by applicable law to be delivered or made available)any, provided, that who controls the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify from and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all lossesClaims, claims, damages, liabilities and expenses caused by (joint and several), including attorneys’ fees and disbursements and expenses i) any untrue or alleged untrue statement of investigation, incurred by such party pursuant to material fact contained in any actual part of any Registration Statement or threatened action, suit, proceeding any preliminary or investigationfinal prospectus used in connection with the Registrable Securities or any Issuer FWP, or (ii) any omission or alleged omission to which any state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading, provided that the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act indemnification shall only apply with respect to statements or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs omissions made in reliance upon on and in conformity with written information with respect to such Participating Stockholder furnished to the Company in writing by or on behalf of such Selling Holder or its Representatives or controlling persons Participating Stockholder expressly for use in connection with such registrationRegistration Statement, preliminary or final prospectus, or Issuer FWP; and provided, further, however, that in no event shall the liability of any Participating Stockholder exceed the dollar amount of the proceeds (net of any underwriting discount or commission or other selling expenses) received by such Participating Stockholder from the sale of the Registrable Securities giving rise to such indemnification.
(c) In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 3.08(a) or (b), such Person (hereinafter called the “indemnified party”) will promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, will retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and will pay the fees and disbursements of such counsel related to such proceeding; provided, however, that (x) the indemnification required by this Section 6.2 failure or delay to give such notice shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to relieve the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right its obligations pursuant to participate in, and, this Agreement except to the extent the such indemnifying party so desireshas been prejudiced in any material respect by such failure or delay. In any such claim, jointly with action or proceeding, any other indemnifying party similarly given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall will have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, but the fees and disbursements and expenses unless representation of such counsel will be at the expense of such indemnified party by the counsel retained by unless (i) the indemnifying party and the indemnified party have mutually agreed to the retention of such counsel or (ii) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel that representation of both parties by the same counsel would be inappropriate due to actual or potential differing conflicting interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)them. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, It is understood that the indemnifying party shall be permitted to participate will not, in connection with any claim, action or proceeding or related claims, actions or proceedings in the defense thereof with its own counsel same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any required local counsel) at its own expenseany time for all such indemnified parties and that all such reasonable fees and expenses will be reimbursed as they are incurred. No In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party shall will not be liable to an indemnified party for any settlement of any actionclaim, action or proceeding effected without its written consent, which consent may not be unreasonably withheld or claim delayed). No indemnifying party will, without the prior written consent of the indemnifying indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to effect any settlement of any action, pending or threatened proceeding in respect of which any indemnified party is or claim without the written consent of the indemnifying could have been a party and indemnity could have been sought hereunder by such indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceedings and unless such settlement does not include the giving to such indemnified party of an unconditional release from all liability in respect of such actiona statement to, proceeding or claim or that requires an admission of, fault, culpability or a failure to act, by or on behalf of wrongdoing by any the indemnified party.
6.4. (d) If the indemnification required by provided for in this Section 6 3.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Claims referred to in this Section 6:
3.08 (i) The other than for Claims for which an indemnified party is expressly not entitled to indemnification pursuant to Section 3.08), then the indemnifying party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses Claims (i) in such proportion as is appropriate to reflect the relative benefit of the Company, on the one hand, and the applicable Stockholder, on the other, in connection with the statements or omissions that resulted in such Claims or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, in such proportion as is appropriate to reflect not only the relative benefit to, but also the relative fault of the indemnifying party and indemnified parties party in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, Claims as well as any other relevant equitable considerations; provided, however, that in no event shall a Participating Stockholder be required to contribute an aggregate amount in excess of the lesser of (A) the amount that such Participating Stockholder would have been obligated to pay under Section 3.08(b) if such indemnity was available to the indemnified party and (B) the dollar amount of proceeds (net of underwriting discounts and commissions and other selling expenses) received by such Participating Stockholder from the sale of Registrable Securities giving rise to such contribution. The relative fault of such indemnifying party and indemnified parties shall party will be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed taken by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Claims referred to above shall will be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.23.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iie) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 3.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i3.08(d). No Person that is guilty of “fraudulent misrepresentation misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. (f) If indemnification is available under this Section 63.08, the indemnifying parties shall party will indemnify each indemnified party to the full extent provided in this Section 6 Sections 3.08(a) and (b) without regard to the relative fault of such said indemnifying party or indemnified party or any other equitable consideration referred to provided for in Section 6.43.08(d) or (e).
6.6. The (g) Notwithstanding anything to the contrary in this Agreement, each of the indemnified parties has relied on this Section 3.08, is an express third party beneficiary of this Section 3.08 and is entitled to enforce the obligations of the Company and the Selling Holders of Registrable Securities applicable indemnified parties under this Section 6 shall survive 3.08 directly against such indemnified parties to the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsfull extent thereof.
Appears in 1 contract
Indemnification; Contribution. If any Registrable ----------------------------- Securities are included in a registration statement under this Agreement:
6.17.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, its directors, officers, shareholders, employees, investment advisors, agents and Affiliates, either direct or indirect (and each underwriter or Agent in any underwritten or agented offeringsuch Affiliate's directors, officers, shareholders, employees, investment advisors and agents) and each other Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, Act against any and all losses, claims, damages, liabilities and expenses (joint or several)expenses, including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”contained therein, or any amendments or supplements thereto, or the omission or alleged omission to state therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements thereintherein not misleading (collectively, in light of the circumstances under which they were made, not misleadinga "Violation"); provided, however, that the indemnification required by this -------- -------
Section 6.1 7.1 shall not apply to amounts paid in settlement of any such loss, - ----------- claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.27.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, officers, shareholders, employees, investment advisors, agents and Affiliates, either direct or indirect (and each of its officers who shall have signed the registration statementsuch Affiliate's directors, officers, shareholders, employees, investment advisors and agents) and each Person other Person, if any, who controls the Company within the meaning of the Securities Actact, each underwriter any other Selling Holder and any controlling Person or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, other Selling Holder against any and all losses, claims, damages, liabilities and expenses (joint and several)expenses, including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registrationregistration statement; provided, however, that (x) the indemnification -------- ------- required by this Section 6.2 7.2 shall not apply to amounts paid in settlement ----------- of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 7.2 and of the ----------- contribution obligation of a Selling Holder under Section 7.4 exceed the gross net ----------- proceeds from the applicable offering received by such Selling Holder, and (z) the obligation to provide indemnification hereunder shall be several, and not joint and several, among the indemnifying parties.
6.37.3. Promptly after receipt by an indemnified party under this Section 6 7 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 67, such indemnified party shall --------- deliver to the indemnifying party a written notice of the commencement thereof and thereof. The failure to deliver written notice to the indemnifying party shall have within a reasonable time following the right to participate incommencement of any such action , and, if and to the extent materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 but shall not relieve the indemnifying --------- party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the --------- indemnified party (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty days of written notice thereof to the indemnifying party so desires, jointly with any other indemnifying party similarly given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the right to retain employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that but the indemnified party fees and expenses of such counsel shall be responsible for its own fees and disbursements and the expenses unless representation of such indemnified party unless(i) the indemnifying party shall have failed to promptly assume the defense of such action, claim or proceeding or (ii) 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 its counsel that there may be one or more legal defenses available to it which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel retained employed by the indemnifying party would be inappropriate due to actual or potential differing interests between could not represent the indemnified party (in which case, if such indemnified party and any other party represented by such counsel in such proceeding (in which case notifies the indemnifying party shall pay such fees and disbursements and expenses in writing that it elects to employ separate counsel at the expense of the indemnified indemnifying party, the indemnifying party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to ; it being understood, however, that the indemnifying party within a reasonable time following the commencement of shall not, in connection with any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any one such action, claim or proceeding if or separate but substantially similar or related actions, claims or proceedings in the indemnifying party does not elect to assume control same jurisdiction arising out of the defense within thirty same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (30together with appropriate local counsel) days after receiving notice thereof; providedat any time for all such indemnified parties, unless the indemnified party shall have been advised by its counsel that a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding such that the counsel could not represent the indemnified party and any other of such indemnified parties, in which event the indemnifying party shall be permitted obligated to participate in pay the defense thereof with its own fees and expenses of such additional counsel and at its own expenseor counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.47.4. If the indemnification required by this Section 6 7 from the --------- indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:7: ---------
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such lossesloses, claims, damages, liabilities or expensesexpense, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 7.1 and Section 6.27.2, ----------- ----------- any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 7.4 were determined ----------- by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i7.4(i). -------------- No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.67.5. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 7 shall survive the completion of --------- any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.17.1. To the extent permitted by applicable law, each of the Company Trust and the Corporation, severally and not jointly, shall indemnify and hold harmless each Selling the Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent the Holder within the meaning of the Securities Act, and each officer, director, partner and employee, employee of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):the
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading; provided, however, that the indemnification required by this Section 6.1 7.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company Trust or the Corporation (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company Trust or the Corporation be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company Trust or the Corporation by the indemnified party in writing expressly for use in connection with such registration; and provided, or (y) further, that the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (indemnity agreement contained in this Section 7 shall not apply to the extent required by law)that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling confirmation of sale to such person if an underwriter or Holder was under an obligation to deliver such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) failed to the same extent as provided above with respect to the indemnification of the Selling Holdersdo so.
6.27.2. To the extent permitted by applicable law, each Selling the Holder shall indemnify and hold harmless the CompanyTrust, the Corporation, each of its directorsthe Trustees of the Trust, each of its the directors of the Corporation, each of the officers of the Trust or the Corporation who shall have signed the registration statement, each Person Person, if any, who controls the Company Trust or the Corporation within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.any
6.37.3. Promptly after receipt by an indemnified party under this Section 6 7 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 67, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, with the fees and disbursements and expenses unless 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 7 to the extent of such prejudiceprejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the including any fees and disbursements and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid by to the indemnifying indemnified party) the defense, compromise and settlement of any such actionas incurred, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving of written notice thereof; provided, that thereof to the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to (regardless of whether it is ultimately determined that an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall is not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.entitled
6.47.4. If the indemnification required by this Section 6 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 67:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.,
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 7.4 were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i7.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.57.5. If indemnification is available under this Section 67, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.47.4.
6.67.6. The obligations of the Company Trust, the Corporation and the Selling Holders of Registrable Securities Holder under this Section 6 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Starwood Hotel & Resorts Worldwide Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.17.1. To the extent permitted by applicable law, each of the Company Trust and the Corporation, severally and not jointly, shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, each Person who participates as a sales or placement agent or underwriter in any offering of the Registered Securities and each officer, director, partner and employee, employee of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such party may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, in each case solely including any preliminary Prospectus or final Prospectus
(ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registrationstatements therein not misleading; provided, however, that (x) the indemnification required by this Section 6.2 7.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected by the indemnified person without the consent of the relevant Selling Holder of Registrable Securities, Trust or the Corporation (which consent shall not be unreasonably withheld), conditioned nor shall the Trust or delayedthe Corporation be liable in any such case for any such loss, claim, damage, liability or expense 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 to the Trust or the Corporation by the indemnified party expressly for use in connection with such registration; and provided further that the indemnity agreement contained in this Section 7 shall not apply to the extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, contained in or omitted from any preliminary Prospectus if the final Prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and (y) in no event a copy of the final Prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if an underwriter, placement agent or Selling Holder was under an obligation to deliver such final Prospectus and failed to do so.
7.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the amount Trust, the Corporation, each of the Trustees of the Trust, each of the directors of the Corporation, each of the officers of the Trust or the Corporation who shall have signed the registration statement, each Person, if any, who controls the Trust or the Corporation within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any indemnity such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under this Section 6.2 exceed the gross proceeds from Securities Act, the applicable offering received Exchange Act or other federal or state laws, but only insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case to the extent that, but only to the extent that, such Violation arises out of or is based upon and was made in reliance upon information furnished by such Selling Holder.Holder expressly for use in connection with such registration; provided, however, that (x) the indemnification
6.37.3. Promptly after receipt by an indemnified party under this Section 6 7 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 67, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with nationally recognized counsel experienced in such matters reasonably satisfactory to the partiesindemnified party; provided, however, that an indemnified party shall have the right to retain separate its own counsel in any such action, claim or proceeding and to participate in not have the defense thereofindemnifying party assume its defense, providedwith the fees, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent materially prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 7 to the extent of such prejudiceprejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted and to participate in the defense thereof with its own thereof, but the fees and expenses of such counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement the expenses of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of unless (i) the indemnifying party has agreed to pay such action, proceeding fees and expenses or claim or that requires an admission of wrongdoing by any indemnified party.(ii) the indemnifying
6.47.4. If the indemnification required by this Section 6 7 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 67:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.in
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 7.4 were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i7.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.57.5. If indemnification is available under this Section 67, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 7 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.47.4 except that no Selling Holder shall be liable for any amount in excess of the net proceeds it receives in the offering which is the subject of the indemnification proceeding.
6.67.6. The obligations of the Company Trust and the Corporation under this Section 7 shall be in addition to any liability which the Trust and the Corporation may otherwise have to the persons specified in Section 7.1 and the obligations of the Selling Holders under this Section 7 shall be in addition to any liability which such Persons may otherwise have to the Trust and the Corporation. The remedies provided in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to an indemnified party at law or in equity.
7.7. The obligations of the Trust, the Corporation and the Selling Holders of Registrable Securities under this Section 6 7 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Starwood Hotel & Resorts Worldwide Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To (i) The Company shall, without limitation as to time, indemnify and hold harmless, to the full extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities ActStockholder, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, members, agents and employees and of each person of them, each Person who controls each such persons Person (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 Stockholder"), to the same fullest extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable lawlawful, each Selling Holder shall indemnify from and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities liabilities, actions or proceedings (whether commenced or threatened) reasonable costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (joint and several), including attorneys’ fees and disbursements and reasonable expenses of investigation) (collectively, incurred "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or 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 of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by the Company to such Stockholder expressly for use in such Registration Statement or prospectus and that such statement or omission was reasonably relied upon by such party pursuant Stockholder in preparation of such Registration Statement, prospectus or form of prospectus; provided, however, that the Company shall not be liable in any such case to the extent that the Company has furnished in writing to such Stockholder within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to such Stockholder, and such Stockholder failed to include such information therein; provided, further, however, that the Company shall not be liable to any actual Person who participates as an underwriter in the offering or threatened actionsale of Registrable Securities or any other Person, suitif any, proceeding or investigation, or to which any who controls such underwriter(s) within the meaning of the foregoing Persons may otherwise become subject under Securities Act to the Securities Act, the Exchange Act or other federal or state laws, insofar as extent that any such losses, claims, damages, liabilities and expenses Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Violation, in each case solely preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with or prior to the extent that such Violation occurs in reliance upon and in conformity with delivery of written information furnished confirmation of the sale by such Selling Holder Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (C) the Company has complied with its Representatives obligations under Section 4(e)(iii). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or controlling persons expressly on behalf of such Indemnified Stockholder.
(ii) In connection with any Registration Statement in which a Stockholder is participating, such Stockholder, or an authorized officer of such Stockholder, shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally and not jointly, to indemnify, to the full extent permitted by law, the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such registrationcontrolling persons (each, an "Indemnified Company", and together with the Indemnified Stockholders, the "Indemnified Parties"), from and against all Losses, as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or 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 of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by such Stockholder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was reasonably relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, however, that (x) the indemnification required by this Section 6.2 such Stockholder shall not apply be liable in any such case to amounts paid the extent that such Stockholder has furnished in settlement writing to the Company within a reasonable period of time prior to the filing of any such lossRegistration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, claim, damage, liability or expense if settlement is effected without information previously furnished to the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayedCompany, and (y) in the Company failed to include such information therein. In no event shall the liability of any selling Stockholder hereunder be greater in amount than the after-tax dollar amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering (net of payment of all expenses) received by such Selling HolderStockholder upon the sale of the Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Company.
6.3. Promptly after receipt by an indemnified (iii) Any Indemnified Party shall give prompt notice to the party under this Section 6 of notice or parties from which such indemnity is sought (the "Indemnifying Parties") of the commencement of any action, suit, proceeding, proceeding or investigation or written threat thereof made in writing for (a "Proceeding") with respect to which such indemnified party may make a claim under this Section 6Indemnified Party seeks indemnification or contribution pursuant hereto; provided, such indemnified party however, that the failure to so notify the Indemnifying Parties shall deliver not relieve the Indemnifying Parties from any obligation or liability except to the indemnifying party a written notice of extent that the commencement thereof and the indemnifying party Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall have the right right, exercisable by giving written notice to participate in, andan Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the extent the indemnifying party so desiresIndemnifying Parties' expense, jointly with any other indemnifying party similarly given notice, to assume the defense thereof of any such Proceeding, with counsel reasonably satisfactory to the partiessuch Indemnified Party; provided, however, that an indemnified party Indemnified Party or Indemnified Parties (if more than one such Indemnified Party is named in any Proceeding) shall have the right to retain employ separate counsel in any such action, claim or proceeding Proceeding and to participate in the defense thereof, provided, that but the indemnified party fees and expenses of such counsel shall be responsible for its own fees and disbursements and expenses unless representation at the expense of such indemnified party by Indemnified Party or Indemnified Parties unless: (x) the counsel retained by the indemnifying party would be inappropriate due Indemnifying Parties agree to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements expenses; (y) the Indemnifying Parties fail promptly to assume the defense of such Proceeding or fail to employ counsel reasonably satisfactory to such Indemnified Party or Indemnified Parties; or (z) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party or Indemnified Parties and expenses the Indemnifying Parties, and there may be one or more defenses available to such Indemnified Party or Indemnified Parties that are different from or additional to those available to the Indemnifying Parties, in which case, if such Indemnified Party or Indemnified Parties notifies the Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the indemnified party and Indemnifying Parties, the Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one such actionProceeding or separate but substantially similar or related Proceedings in the same jurisdiction, claim arising out of the same general allegations or proceeding on behalf circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified partyIndemnified Party or Indemnified Parties. Whether or not such defense is assumed by the Indemnifying Parties, such Indemnifying Parties or Indemnified Party or Indemnified Parties will not be subject to any liability for any settlement made without its or their consent (but such consent will not be unreasonably withheld). The failure Indemnifying Parties shall not consent to deliver written notice to the indemnifying party within a reasonable time following the commencement entry of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim judgment or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for enter into any settlement of any action, proceeding or claim which (A) provides for other than monetary damages without the written consent of the indemnifying party, Indemnified Party or Indemnified Parties (which consent shall not be unreasonably withheld, conditioned withheld or delayed. No indemnifying party shall consent to any settlement of any action, proceeding ) or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party Indemnified Party or Indemnified Parties of an unconditional release a release, in form and substance satisfactory to the Indemnified Party or Indemnified Parties, from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyProceeding for which such Indemnified Party would be entitled to indemnification hereunder.
6.4. (iv) If the indemnification required by provided for in this Section 6 from the indemnifying party 4(g) is unavailable to an indemnified party hereunder Indemnified Party or is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities or expenses referred to in which this Section 6:
(i4(g) The indemnifying partywould otherwise apply by its terms, then each applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have a joint and several obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of and relative benefit to the indemnifying party Indemnifying Party, on the one hand, and indemnified parties such Indemnified Party, on the other hand, in connection with the actions actions, statements or omissions that resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party Indemnifying Party, on the one hand, and indemnified parties Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partiesIndemnified Party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent any such Violationaction, statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 4(g)(i) or proceeding.
(ii4(g)(ii) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 4(g)(iv) were determined by pro pro-rata allocation or by any other method of allocation that does not take into account of the equitable considerations referred to in this Section 6.4(i4(g)(iv). No Person Notwithstanding the provisions of this Section 4(g)(iv), an Indemnifying Party that is a selling Stockholder shall not be required to contribute any amount in excess of the amount by which the net after-tax proceeds received by such Indemnifying Party exceeds the amount of any damages that such Indemnifying Party has otherwise been required to pay by reasons of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Warrant Agreement (Eplus Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the (a) The Company shall will indemnify and hold harmless to the full extent permitted by the law each Selling Holder, each underwriter of its officers, directors, agents, underwriters, attorneys, accountants and employees of each Holder, and each person controlling the Holder, within the meaning of Section 15 of the Securities Act and the rules and regulations thereunder with respect to which registration, qualification or Agent compliance has been effected pursuant to this Agreement, against all claims, losses, damages liabilities and expenses (or actions in respect thereof) arising out of, based on or related to any untrue statement (or alleged untrue statement) of a material fact contained in any underwritten prospectus or agented offeringother offering materials, (including, without limitation, any related Registration Statement, notification or the like) relating to any such registration, qualification or compliance, or arising out of, based on or related to any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or any state securities law or in either case, any rule or regulation thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will reimburse each Holder, each Personof its officers, directors, agents, underwriters, attorneys, accountants and employees of each Holder, and each person controlling such Holder, for any legal and any other expenses reasonably incurred in connection with investigating and defending any such claim, loss, damage, liability or action, provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of, is based on or related to any untrue statement or omission based upon written information furnished to the Company by the Holder and stated to be specifically for use therein.
(b) The Company may require, as a condition to including any Registrable Shares in any registration statement filed pursuant to Section 1.2 ----------- or Section 1.4, that the Company shall have received an undertaking reasonably ----------- satisfactory to the Company from the Holder of such Registrable Shares to indemnify and hold harmless to the full extent permitted by the law the Company, each of its directors, officers, agents, attorneys, accountants and Company employees and each underwriter, if any, of the Company's securities covered by such a registration statement, each person who controls the Company or such Selling Holder, underwriter or Agent within the meaning of Section 15 of the Securities ActAct and the rules and regulations thereunder, each other shareholder (if any), and each officerof their officers, directordirectors and partners, partner and employeeeach person controlling such other shareholder against all claims, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise actions in respect thereof) arising out of based on or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) related to any untrue statement (or alleged untrue statement statement) of a material fact contained in any such registration statement or Registration Statement, prospectus, including any preliminary prospectus offering circular or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actother document, or any amendments or supplements thereto; or
omission (ii) the omission or alleged omission omission) to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, statement therein not misleading; provided, howeverand will reimburse the Company and such other shareholders and their directors, that the indemnification required by this Section 6.1 shall not apply to amounts paid officers, agents, attorneys, accountants and Company employees and partners, underwriters or control persons for any legal or any other expenses reasonably incurred in settlement of connection with investigating and defending any such claim, loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheldaction, conditioned or delayed), nor shall the Company be liable in any such each case for any such loss, claim, damage, liability, or expense solely to the extent extent, but only to the extent, that it arises out of such untrue statement (or alleged untrue statement) or omission (or alleged omission) is based upon (x) a Violation which occurs made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Company by the indemnified party Holder and stated to be specifically for use in connection with such registrationtherein, or and provided that the maximum amount for which the Holder shall be liable under this indemnity shall not exceed the net proceeds received by the Holder from the sale of the Registrable Shares.
(yc) the failure of any person Each party entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities under this Section 1.9 (the ----------- "Indemnified Party") shall give notice to the extent party required by law), a copy to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law claim as to which indemnity may be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Actsought, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant shall permit the Indemnifying Party to any actual or threatened action, suit, proceeding or investigation, or to which any of assume the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement defense of any such lossclaim in any litigation resulting therefrom, claimprovided that counsel for the Indemnifying Party, damagewho shall conduct the defense of such claim or any litigation resulting therefrom, liability or expense if settlement is effected without shall be approved by the consent of the relevant Selling Holder of Registrable Securities, which consent Indemnified Party (whose approval shall not be unreasonably withheld, conditioned or delayed), and (y) the Indemnified Party may participate in no event shall such defense at such party's expense, and provided further that the amount failure of any indemnity Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, Article except to the extent that the indemnifying party so desiresIndemnifying Party is materially and adversely affected by such failure to provide notice. No Indemnifying Party, jointly with any other indemnifying party similarly given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such actionclaim or litigation, if and only shall, except with the consent of each Indemnified Party, consent to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party entry of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim judgment or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for enter into any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party Indemnified Party of an unconditional a release from all liability in respect of to such action, proceeding or claim or that requires litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an admission of wrongdoing by any indemnified party.
6.4. If the indemnification Indemnifying Party may reasonably request in writing and as shall be reasonably required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault defense of such indemnifying party claim and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceedinglitigation resulting therefrom.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Registration Rights Agreement (Nettel Communications Inc)
Indemnification; Contribution. If any Registrable ----------------------------- Securities are included in a registration statement under this Agreement:
6.17.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner and partner, member, employee, agent, representative and attorney of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and reasonable expenses of investigation, incurred by such party Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(ia) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(iib) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(c) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 7.1 shall -------- ------- ----------- not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises solely out of or is solely based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity -------- ------- agreement contained in this Section 7 shall not apply to any underwriter to the --------- extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or (y) an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the failure of any person entitled to indemnification hereunder to deliver final prospectus shall correct such untrue statement or make available to a purchaser of Registrable Securities (to the extent required by law)alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling Holder confirmation of sale to such registration statement, including person if such preliminary prospectus or underwriter was under an obligation to deliver such final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.27.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, member, employee, agent, representative and employee attorney of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and reasonable expenses of investigation, incurred by such party 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, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required -------- ------- by this Section 6.2 7.2 shall not apply to amounts paid in settlement of any such ----------- loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 7.2 exceed the gross proceeds from the applicable ----------- offering received by such Selling Holder.
6.37.3. Promptly after receipt by an indemnified party under this Section 6 7 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 67, such indemnified party shall deliver to --------- the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall -------- ------- have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, with the fees and disbursements and expenses unless 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 ------- 7 but shall not relieve the indemnifying party of any liability that it may have - to the extent of such prejudiceany indemnified party otherwise than pursuant to this Section 7. Notwithstanding the foregoing, Any fees --------- and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own 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 exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel and at its own expenseor counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.47.4. If the indemnification required by this Section 6 7 from --------- the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:7: ---------
(ia) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 7.1 and ----------- Section 6.27.2, any legal or other fees or expenses reasonably incurred by such ----------- party in connection with any investigation or proceeding.
(iib) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 7.4 were determined by pro rata ----------- allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i7.4(i). No Person that is guilty of fraudulent -------------- misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5(c) In no event shall the total of amounts paid pursuant to this Section 7.4 by any Selling Holder exceed the gross proceeds from the applicable ----------- offering received by such Selling Holder.
7.5. If indemnification is available under this Section 67, the --------- indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 7 without regard to the relative fault of such --------- indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.7.4. -----------
6.67.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 7 shall survive the completion of any --------- offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Firearms Training Systems Inc)
Indemnification; Contribution. If (a) In the event of any Registrable ----------------------------- registration of any securities of the Company under the Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable lawAct, the Company shall will, and hereby does, indemnify and hold harmless each Selling Holderin the case of any registration statement filed pursuant to Section 2 or 3, the holder of any Registrable Securities covered by such registration statement, its directors and officers, each underwriter or Agent in any underwritten or agented offeringofficer and director of each underwriter, each Personother person who participates as an underwriter in the offering or sale of such securities and each other person, if any, who controls such Selling Holder, holder or any such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, Act against any and all losses, claims, damages, liabilities and expenses (expenses, joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which such holder or any of the foregoing Persons such director or officer or participating or controlling person may become subject under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such losses, claims, damages, liabilities and or expenses (or actions or proceedings or investigations in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(ix) any untrue statement or alleged untrue statement of a any material fact contained in such any registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as under which such term is defined in Rule 433 securities were registered under the Securities Act, any preliminary prospectus (unless, with respect to the indemnification of the officers and directors of each underwriter and each other person participating as an underwriter, any such statement is corrected in a subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or summary prospectus included therein, or any amendments amendment or supplements supplement thereto; or
, or any document incorporated by reference therein, or (iiy) the any omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, or (z) any violation by the Company of any securities laws, and the Company will reimburse such holder and each such director, officer, participating person and controlling person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided, however, that the indemnification required by this Section 6.1 Company shall not apply -------- ------- be liable to amounts paid any seller, director, officer, participating person or controlling person in settlement of any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company in an instrument executed by or under the indemnified party direction of such seller, director, officer, participating person or controlling person for use in connection with such registrationthe preparation thereof, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or (y) the failure other document. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or any such director, officer, participating person entitled or controlling person and shall survive the transfer of such securities by such seller. The Company shall agree to indemnification hereunder provide for contribution relating to deliver or make available to a purchaser such indemnity as shall be reasonably requested by any seller of Registrable Securities or the underwriters.
(b) The Company may require, as a condition to the extent required by law), a copy of including any Registrable Securities in any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law statement filed pursuant to be delivered or made availableSection 2(a), provided, that the Company shall have timely delivered received an undertaking satisfactory to it from the applicable Selling Holder prospective sellers of such registration statement, including such preliminary prospectus or final prospectus contained therein securities and any amendments or supplements thereto. The Company shall also indemnify their underwriters, selling brokers, dealer managers to indemnify and similar securities industry professionals participating hold harmless (in the distribution, their officers, directors, agents same manner and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification set forth in subdivision (a) of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless this Section 6) the Company, each director of its directorsthe Company, each officer of its officers the Company who shall have signed the sign such registration statementstatement and each other person, each Person if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant with respect to any actual statement in or threatened actionomission from such registration statement, suitany preliminary prospectus, proceeding final prospectus or investigationsummary prospectus included therein, or to which any of the foregoing Persons may otherwise become subject under the Securities Actamendment or supplement thereto, the Exchange Act but only if such statement or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs omission was made in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by such Selling Holder sellers or its Representatives or controlling persons expressly their underwriters specifically stating that it is for use in connection with the preparation of such registration; providedregistration statement, howeverpreliminary prospectus, that (x) the indemnification required by this Section 6.2 final prospectus, summary prospectus, amendment or supplement. Such indemnity shall not apply to amounts paid remain in settlement full force and effect regardless of any such loss, claim, damage, liability investigation made by or expense if settlement is effected without the consent on behalf of the relevant Selling Holder Company or any such director, officer or controlling person and shall survive the transfer of Registrable Securitiessuch securities by such sellers. Anything contained herein to the contrary notwithstanding, which consent the maximum liability of each prospective seller in the case of each prospective seller shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall limited to an amount equal to the amount of any indemnity under this Section 6.2 exceed the gross net proceeds from the applicable offering actually received by such Selling Holderprospective seller from the sale of such Registrable Securities.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, suit, proceeding, investigation action or threat thereof made in writing for which such indemnified party may make proceeding involving a claim under referred to in the preceding subdivisions of this Section 6, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided, -------- however, that the failure of any indemnified party to give notice as provided ------- herein shall deliver to not relieve the indemnifying party of its obligations under the preceding subdivisions of this Section 6 except to the extent that the indemnifying party's rights are prejudiced, or liabilities and obligations under this Section 6 are increased, as a written notice result of the commencement thereof and such failure to give notice. In case any such action is brought against an indemnified party, the indemnifying party shall have the right be entitled to participate in, and, in and to assume the extent the indemnifying party so desiresdefense thereof, jointly with any other indemnifying party similarly given noticenotified, to assume the defense thereof extent that it may wish, with counsel reasonably satisfactory to such indemnified party. After notice from the parties; providedindemnifying party to such indemnified party of its election so to assume the defense thereof, howeverthe indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof unless (i) the indemnifying party shall have failed to retain counsel for the indemnified party as aforesaid, that an (ii) the indemnifying party and the indemnified party shall have mutually agreed to the right to retain separate retention of such counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless (iii) 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 person represented by such counsel in such proceeding or the 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume direct the defense of such action, claim or proceeding action on behalf of such the indemnified party). The failure to deliver written notice to the No indemnifying party within a reasonable time following the commencement will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying indemnified party of any a release from all liability in respect to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the litigation. The indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall not be liable to an indemnified party for any settlement of any action, proceeding or claim effected without the written consent of the such indemnifying party, party (which consent shall not be unreasonably withheld), conditioned but if settled with such consent or delayed. No indemnifying party shall consent to any settlement of any actionif there be a final judgment for the plaintiff, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable agrees to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment.
(d) Indemnification and contribution similar to the full extent provided that specified in this Section 6 without regard (with appropriate modifications) shall be given by the Company and each seller of Registrable Securities with respect to the relative fault any required registration or other qualification of such indemnifying party Registrable Securities under any federal or indemnified party state law or any regulation or governmental authority other equitable consideration referred to in Section 6.4than the Securities Act.
6.6. (e) The rights and obligations of the Company and the Selling Holders of Registrable Securities parties under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration termination of the applicable statute of limitationsPurchase Agreement.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Bankers Trust New York Corp)
Indemnification; Contribution. If (a) In the event of any Registrable registration of any equity securities of the Corporation under the Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by Act or applicable lawCanadian Securities Laws, the Company shall Corporation will, and hereby does agree to, indemnify and hold harmless each Selling Holderharmless, in the case of any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof or any related preliminary prospectus, issuer free writing prospectus (as defined in Rule 433(h) under the Securities Act), or issuer information (as defined in Rule 433(h) under the Securities Act) which issuer information is required to be filed pursuant to Rule 433(d) under the Securities Act, the seller of any Registrable Shares covered by such registration statement or prospectus or any related preliminary prospectus or free writing prospectus, its respective directors and officers, partners and members, each other Person who participates as an underwriter in the offering or Agent in any underwritten or agented offeringsale of such securities, and each other Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus seller or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several)expenses, including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of the foregoing Persons them may otherwise become subject under the Securities Act, the Exchange Act applicable Canadian Securities Laws or other federal or state lawsotherwise, insofar as such losses, claims, damages, liabilities and or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any Violationuntrue statement or alleged untrue statement of any material fact contained in any registration statement or prospectus under which such securities were registered under the Securities Act, any related preliminary prospectus or free writing prospectus, or any preliminary prospectus or final prospectus filed with applicable Canadian Securities Commissions, or any amendment or supplement thereto, or any document incorporated by reference therein, 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 not misleading; provided, however, that the Corporation shall not be liable in each any such case solely to the extent that any such Violation occurs loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Corporation for use in the preparation thereof by such seller or underwriter, as the case may be, and identified as such. This indemnity shall be in addition to any liability the Corporation may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or any such director or officer, underwriter or controlling Person and shall survive the transfer of such securities by such seller.
(b) The Corporation may require, as a condition to including any Registrable Shares in any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, that the Corporation shall have received an agreement satisfactory to it from (i) the prospective seller of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 9(a), except that any such prospective seller shall not in any event be liable to the Corporation pursuant thereto for an amount in excess of the net proceeds of the sale of such prospective seller’s Registrable Shares so to be sold) the Corporation, each director of the Corporation and each of the Corporation’s officers who signed the registration statement or prospectus, each such underwriter of such securities, and each other Person, if any, who controls the Corporation or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and (ii) each such underwriter of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 9(a) above) the Corporation, each officer who signed the registration statement or prospectus and each director of the Corporation, each prospective seller, and each other Person, if any, who controls the Corporation or any such prospective seller within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect to any untrue statement in or omission from such registration statement, any preliminary prospectus, final prospectus, or any amendment or supplement thereto, if such untrue statement or omission was made in reliance upon and in conformity with written information furnished by such Selling Holder prospective seller or its Representatives or controlling persons expressly such underwriter, as the case may be, to the Corporation for use in connection with the preparation of such registration; providedregistration statement, howeverpreliminary prospectus, that (x) the indemnification required by this Section 6.2 final prospectus, amendment or supplement, and identified as such. Such indemnity shall not apply to amounts paid remain in settlement full force and effect regardless of any such loss, claim, damage, liability investigation made by or expense if settlement is effected without the consent on behalf of the relevant Selling Holder Corporation or any such director, officer or controlling Person and shall survive the transfer of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received such securities by such Selling Holderseller.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, suit, proceeding, investigation action or threat thereof made in writing for which such indemnified party may make proceeding (including any governmental investigation) involving a claim under this referred to in either Section 69(a) above or (b) above, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall deliver to not relieve the indemnifying party a written notice of its obligations under the commencement thereof and preceding provisions of this Section 9, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, the indemnifying party shall have be entitled to assume the right to participate in, and, to the extent the indemnifying party so desiresdefense thereof, jointly with any other indemnifying party similarly given noticenotified, to the extent that it may wish, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof with counsel reasonably satisfactory thereof, the indemnifying party will not be liable to the parties; provided, however, that an such indemnified party shall have for any legal or other expenses subsequently incurred by the right to retain separate counsel indemnified party in any such action, claim or proceeding and to participate in connection with the defense thereof. If, providedin the indemnified party’s reasonable judgment, that a conflict of interest between such indemnified party and indemnifying parties may exist in respect of such claim, the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted entitled to participate in the defense thereof with its own counsel and at its own expense. No the indemnifying party shall be liable to an indemnified party for the fees and expenses of one but not more than one counsel for all sellers of Registrable Shares and one but not more than one counsel for the underwriters in connection with any settlement of any action, proceeding one action or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned separate but similar or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyrelated actions.
6.4. (d) If the indemnification required by provided for in the foregoing clauses (a), (b) and (c) of this Section 6 from the indemnifying party 9 is unavailable to an the indemnified party hereunder parties in respect of any losses, claims, damages, damages or liabilities or expenses referred to in this Section 6:
(i) The therein, then each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount amounts paid or payable by such indemnified party parties as a result of such losses, claims, damagesdamages or liabilities (i) as between the Corporation and the holders of Registrable Shares covered by a registration statement, liabilities on the one hand, and the underwriters, on the other, in such proportion as is appropriate to reflect the relative benefits received by the Corporation and such holders, on the one hand, and the underwriters, on the other, from the offering of the Registrable Shares, or expenses if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits but also the relative fault of the Corporation and such holders, on the one hand, and of the underwriters, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations, and (ii) as between the Corporation, on the one hand, and each holder of Registrable Shares covered by a registration statement or prospectus, on the other, in such proportion as is appropriate to reflect the relative fault of the indemnifying party Corporation and indemnified parties of each such holder in connection with the actions that resulted in such losses, claims, damages, liabilities statements or expensesomissions, as well as any other relevant equitable considerations. The relative benefits received by the Corporation and such holders, on the one hand, and the underwriters, on the other, shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Corporation and such holders bear to the total underwriting discounts and commissions received by the underwriters. The relative fault of the Corporation and such indemnifying party holders, on the one hand, and indemnified parties of the underwriters, on the other, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Corporation and such holders or by the underwriters. The relative fault of the Corporation, on the one hand, and of each such indemnifying party holder, on the other, shall be determined by reference to, among other things, whether the untrue or indemnified partiesalleged untrue statement of a material fact relates to information supplied by such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid statement or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceedingomission.
(iie) The parties hereto Corporation and the holders of Registrable Shares agree that it would not be just and equitable if contribution pursuant to this Section 6.4 9(d) were determined by pro rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account of the equitable considerations referred to in the next preceding paragraph. Notwithstanding the provisions of Section 6.4(i9(d), no holder of Registrable Shares shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Shares of such holder were offered to the public exceeds the amount of any damages that such holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under The obligation of the holders of Registrable Shares to contribute pursuant to this Section 6, 9 is several in the indemnifying parties shall indemnify each indemnified party proportion that the proceeds of the offering received by such holder bears to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations total proceeds of the Company offering received by all holders and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsnot joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Photowatt Technologies Inc.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.111.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, ▇▇. ▇▇▇▇▇ against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in such registration statement, in each case solely including any preliminary prospectus or final prospectus contained therein, or any amendments or supplements thereto; or
(ii) The omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registrationstatements therein not misleading; provided, however, that (x) the indemnification required by this Section 6.2 11.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, Company (which consent shall not be unreasonably withheld), conditioned nor shall the Company be liable in any such case for any such loss, claim, damage, liability or delayedexpense to the extent that it arises out of or is based upon a Violation that occurs in reliance upon and in conformity with information furnished in writing to the Company by the indemnified party expressly for use in connection with such registration.
11.2. To the extent permitted by applicable law, ▇▇. ▇▇▇▇▇ 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 registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any such other Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys' fees and disbursements and reasonable expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such losses, claims, damages, liabilities and expenses 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 by ▇▇. ▇▇▇▇▇ in writing expressly for use in connection with such registration; provided, however, that (x) any indemnification required by this Section 11.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of ▇▇. ▇▇▇▇▇ (which consent shall not be unreasonably withheld) and (y) in no event shall the amount of any indemnity under this Section 6.2 11.2 exceed the gross proceeds from the applicable offering received by such Selling Holder▇▇. ▇▇▇▇▇.
6.311.3. Promptly after receipt by an indemnified party under this Section 6 11 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 611, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, with the fees and disbursements and expenses unless 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 11 to the extent of such prejudiceprejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 11. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own counsel 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 exist between such indemnified party and at its own expense. No any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be liable obligated to an indemnified party for any settlement of any action, proceeding or claim without pay the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect fees and expenses of such action, proceeding additional counsel or claim or that requires an admission of wrongdoing by any indemnified partycounsels).
6.411.4. If the indemnification required by this Section 6 11 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 611:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 11.1 and Section 6.211.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 11.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i11.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.511.5. If indemnification is available under this Section 611, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 11 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.411.4.
6.611.6. The obligations of the Company and the Selling Holders of Registrable Securities ▇▇. ▇▇▇▇▇ under this Section 6 11 shall survive the completion termination of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Registration Rights Agreement (CDW Computer Centers Inc)
Indemnification; Contribution. If In the event any Registrable Securities are SPSS Common Stock held by a Quantime Shareholder is included in a registration statement under this AgreementArticle II:
6.1. To the extent permitted by applicable law, the Company shall (a) SPSS will indemnify and hold harmless such Quantime Shareholder, any underwriter (as defined in the Act) for such Quantime Shareholder and each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Personperson, if any, who controls such Selling Holder, Quantime Shareholder or underwriter or Agent within the meaning of the Securities Act or the 1934 Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and ) or expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons they may become subject under the Securities Act, the Exchange 1934 Act or other federal or state lawslaw, insofar as such losses, claims, damages, liabilities and (or actions in respect thereof) or expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”):
"): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, contained therein or any amendments or supplements thereto; or
, (ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements thereintherein not misleading, in light or (iii) any violation or alleged violation by SPSS of the circumstances Act, the 1934 Act, any state securities law or any rule or regulation promulgated under which they were madethe Act, not misleadingthe 1934 Act or any state securities law; and SPSS will pay to each such Quantime Shareholder, underwriter or controlling person, any and all legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnification required by indemnity agreement contained in this Section 6.1 subsection 2.5(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability liability, action or expense if such settlement is effected without the consent of the Company (SPSS, which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company SPSS be liable in any such case for any such loss, claim, damage, liability, action or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party such Quantime Shareholder or any controlling person of such Quantime Shareholder expressly for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall (b) Such Quantime Shareholder will indemnify and hold harmless the CompanySPSS, each of its directors, each of its officers who shall have has signed the registration statement, each Person person, if any, who controls the Company SPSS within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Actunderwriter, and each officer, director, partner and employee any controlling person of any such underwriter or Agent or such controlling Personunderwriter, against any and all losses, claims, damages, liabilities and expenses (joint and or several), including attorneys’ fees and disbursements and ) or expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons persons may otherwise become subject subject, under the Securities Act, the Exchange 1934 Act or other federal or state lawslaw, insofar as such losses, claims, damages, liabilities and (or actions in respect thereto) or expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons Quantime Shareholder expressly for use in connection with such registration; and such Quantime Shareholder will pay, as incurred, any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this subsection 2.5(b), in connection with investigating or defending any such loss, claim, damage, liability, action or expense; provided, however, that (xthe indemnity agreement contained in this subsection 2.5(b) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability liability, action or expense if such settlement is effected without the consent of the relevant Selling Holder of Registrable Securitiessuch Quantime Shareholder, which consent shall not be unreasonably withheld, conditioned withheld or delayed; provided, and (y) that, in no event shall the amount of any indemnity under this Section 6.2 subsection 2.5(b) exceed the gross proceeds from the applicable offering of the shares of SPSS Common Stock received by such Selling HolderQuantime Shareholder. SPSS shall make the Registration Statement available to the Quantime Shareholders for comment prior to the filing thereof.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 2.5 of notice of the commencement of any action (including any governmental action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 6), such indemnified party shall will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.5, deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel in any such actioncounsel, claim or proceeding and to participate in with the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless 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 a conflict of interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following of the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party2.5.
6.4. (d) If the indemnification required by provided for in this Section 6 2.5 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault faults of such indemnifying party and indemnified parties party shall be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed made by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to includeinclude any fees, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees charges or expenses (including fees, disbursements and other charges of legal counsel) reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentationperson.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Stock Purchase Agreement (SPSS Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. (a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner partner, and employee, employee of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(iii) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, or (y) further, that the failure of indemnity agreement contained in this Section 6 shall not apply to any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (underwriter to the extent required by law)that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling Holder confirmation of sale to such registration statement, including person if such preliminary prospectus or underwriter was under an obligation to deliver such final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, and employee of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 6(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 6(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)at its own expense except as provided below. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 but shall not relieve the indemnifying party of any liability that it may have to the extent of such prejudiceany indemnified party otherwise than pursuant to this Section 6. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within sixty (60) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder, but in such event such amounts shall be refunded). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own 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 exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel and at its own expenseor counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. (d) If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 6(a) and Section 6.26(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 6(d) were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i6(d)(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. (e) If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.46(d).
6.6. (f) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the (a) The Company shall agrees to indemnify and hold harmless the Dealer Manager, each Selling Holder, each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an “Underwriter”) and the affiliates, directors, officers, agents, representatives and employees of the Dealer Manager, any Holder, Participating Broker-Dealer or Agent in any underwritten or agented offering, Underwriter and each Person, if any, who controls such Selling the Dealer Manager, any Holder, underwriter Participating Broker-Dealer or Agent within the meaning of Underwriter (each an “Indemnified Person”) with respect to the Securities Act, and each officer, director, partner Exchange Notes as follows:
(i) from and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, actions, claims, damagesdamages or liabilities, liabilities and will reimburse any Indemnified Person for all costs and expenses (joint or several)including, including attorneys’ fees and disbursements and expenses of investigationbut not limited to, reasonable counsel fees) as they are incurred by such party pursuant Indemnified Person in connection with investigating, preparing to defend or defending any actual such action or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, claim insofar as such losses, actions, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus Registration Statement (or any “issuer free writing prospectus” as such term is defined in Rule 433 amendment or supplement thereto) pursuant to which Exchange Notes or Transfer Restricted Securities were registered under the Securities 1933 Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therefrom of a material fact required or allegedly required to be stated thereintherein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto) pursuant to which Exchange Notes or Transfer Restricted Securities were registered under the 1933 Act, or the omission or alleged omission therefrom of a material fact necessary or allegedly necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(ii) from and against any and all actions, claims, damages, liabilities or expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 4(c) below) any such settlement is effected with the written consent of the Company; provided, however, that the indemnification Company will not be liable to any Indemnified Person to the extent that any claims, liabilities, losses, damages, costs or expenses (A) are finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence, bad faith or willful misconduct of such Indemnified Person or (B) arise out of or are based upon (x) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any Prospectus, (y) any omission or alleged omission to state in any Registration Statement a material fact required to be stated therein or necessary to make the statements therein not misleading, or (z) any omission or alleged omission to state in any Prospectus a material fact in any Prospectus necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, if in either such case such statement or omission relates solely to a Holder, Participating Broker-Dealer, Underwriter or the Dealer Manager and was made in reliance upon and in conformity with information furnished in writing by such Holder, Participating Broker-Dealer, Underwriter or the Dealer Manager to the Company expressly for use therein. The Company shall not be liable under this Section 6.1 shall not apply to amounts paid in 4 for any settlement of any such loss, claim, damage, liability claim or expense if such settlement is action effected without the consent of the Company (its prior written consent, which consent shall not be unreasonably withheld.
(b) Each Holder severally, conditioned but not jointly, agrees to indemnify and hold harmless the Company, each Underwriter and the other selling Holders, and each of their affiliates, directors, officers, agents, representatives and employees and each Person, if any, who controls the Company, any Underwriter or delayed)any other selling Holder, nor shall against any and all losses, actions, claims, damages, liabilities and expense described in the Company be liable indemnity contained in any such case for any such lossSection 4(a) hereof, claimas incurred, damage, liabilitybut only with respect to untrue statements or omissions, or expense solely to alleged untrue statements or omissions, made in the extent that it arises out of Shelf Registration Statement (or is based upon any amendment thereto) or any Prospectus included therein (xor any amendment or supplement thereto) a Violation which occurs in reliance upon and in conformity with written information with respect to such Holder furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee on behalf of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with the Shelf Registration Statement (or any amendment thereto) or such registrationProspectus (or any amendment or supplement thereto); provided, however, that (x) the indemnification required by this Section 6.2 no such Holder shall not apply to amounts paid be liable for any claims hereunder in settlement excess of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross net proceeds from the applicable offering received by such Selling HolderHolder from the sale of Transfer Restricted Securities pursuant to such Shelf Registration Statement.
6.3. (c) The Company will not, without the prior written consent of a Holder, Participating Broker-Dealer, Underwriter or the Dealer Manager, as the case may be, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought by an Indemnified Person hereunder (when an Indemnified Person is or could have been a party to such claim, action, suit or proceeding), unless such settlement, compromise or consent (i) includes an unconditional written release (in form and substance reasonably satisfactory to the Indemnified Persons) of the Indemnified Persons from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an Indemnified Person.
(d) Promptly after receipt by an indemnified party Indemnified Person under this Section 6 4 of notice of the commencement of any action, suitsuch Indemnified Person will, proceeding, investigation or threat thereof made in writing for which such indemnified party may make if a claim in respect thereof is to be made against the Company under this Section 64, such indemnified party shall deliver to notify the indemnifying party a written notice Company in writing of the commencement thereof thereof; but the omission so to notify the Company (i) will not relieve the Company from any liability which it may have to any Indemnified Person otherwise than under this Section 4 unless and to the indemnifying party shall have extent such failure results in the right forfeiture by the Company of substantial rights and defenses and (ii) will not, in any event, relieve the Company from any obligations to any Indemnified Person other than the indemnification obligation provided in this Section 4. In case any such action is brought against any Indemnified Person, and it notifies the Company of the commencement thereof, the Company will be entitled to participate in, therein and, to the extent the indemnifying party so desiresthey may wish to, jointly with any other indemnifying party similarly given notice, to may assume the defense thereof thereof, with counsel reasonably satisfactory to the partiessuch Indemnified Person; provided, however, that an indemnified party shall have if the right to retain separate counsel defendants in any such actionaction include both the Indemnified Person and the Company and the Indemnified Person shall have concluded that there may be one or more legal defenses available to it and/or other Indemnified Persons that are different from or additional to those available to the Company, claim or proceeding and to participate in then the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and Company shall not have the right to assume direct the defense of such action, claim or proceeding action on behalf of such indemnified partyIndemnified Person(s) and such Indemnified Person(s) shall have the right to select separate counsel to defend such action on behalf of such Indemnified Person(s). The failure After notice from the Company to deliver written notice such Indemnified Person of its election so to assume the indemnifying party within a reasonable time following the commencement defense thereof, approval by such Indemnified Person of any counsel appointed to defend such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent approval shall not be unreasonably withheld, conditioned the retention of such counsel by the Company in a timely manner, the Company will not be liable to such Indemnified Person under this Section 4 for any legal or delayedother expenses, other than reasonable costs of investigation subsequently incurred by such Indemnified Person in connection with the Company’s defense thereof, unless (i) the Indemnified Person shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the Company shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances representing the Indemnified Persons who are parties to such action or actions) or (ii) the Company has authorized the employment of counsel for the Indemnified Person at the expense of the Company. No indemnifying party shall consent After such notice from the Company to such Indemnified Person, approved by such Indemnified Person and retention of such counsel by the Company, the Company will not be liable for the losses, costs and expenses of any settlement of any action, proceeding or claim such action effected by such Indemnified Person without the written consent of the indemnifying partyCompany, unless such Indemnified Person waives all of its rights under this Section 4, in which consent shall not be unreasonably withheld, conditioned or delayed, that does not include case the giving to Indemnified Person may effect such indemnified party of an unconditional release from all liability in respect of a settlement without such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyconsent.
6.4. If (e) In circumstances in which the indemnification required by indemnity agreement provided for in the preceding paragraphs of this Section 6 from the indemnifying party 4 is unavailable or insufficient to hold harmless an indemnified party hereunder Indemnified Person in respect of any losses, claims, damagesdamages or liabilities (or actions in respect thereof), liabilities or expenses referred to in this Section 6:
(i) The indemnifying partythe Company, in lieu of indemnifying such indemnified partyorder to provide for just and equitable contribution, shall contribute to the amount paid or payable by such indemnified party Indemnified Person as a result of such losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) in such proportion as is appropriate to reflect (i) the relative benefits received by the Company on the one hand and the Indemnified Person(s) on the other hand or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of the indemnifying party Company on the one hand and indemnified parties the Indemnified Person(s) on the other hand in connection with the actions that resulted in such losses, claims, damagesdamages or liabilities (or actions in respect thereof). The relative benefits received by the Company on the one hand and the Indemnified Person(s) on the other hand shall be deemed to be in the same proportion as (i) the relative benefits received by the Company from the initial offering and sale of the Securities, liabilities or expenseson one hand, as well as any other relevant equitable considerationsbears to (ii) the relative benefit received by a Holder from receiving securities registered under the 1933 Act, on the other. The relative fault of such indemnifying party the Company on the one hand and indemnified parties the Holders on the other hand shall be determined by reference to, among other things, whether any Violation has been committed by, such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied byby the Company, such indemnifying party or indemnified parties, the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result indemnity, reimbursement and contribution obligations of the losses, claims, damages, liabilities and expenses referred to above Company under this Agreement shall be deemed in addition to includeany rights that a Holder or any other Indemnified Person may have at common law or otherwise, subject to including any other agreements by and among the limitations set forth in Section 6.1 parties hereto. The Company and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto the Holders agree that it would not be just and equitable if the amount of such contribution pursuant to this Section 6.4 were determined by pro rata or per capita allocation (even if the Company on the one hand and the Indemnified Person(s) on the other hand were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to in this Section 6.4(i)4. No Person that is Notwithstanding the provisions of this Section 4, no Holder shall be required to contribute any amount in excess of the amount by which the net proceeds received by such Holder from the exchange of the Transfer Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission with respect to the Securities or Exchange Notes from the exchange of the Transfer Restricted Securities, and no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under For purposes of this Section 64, each Person, if any, who controls the indemnifying parties shall indemnify Dealer Manager, any Holder, each indemnified party to Participating Broker-Dealer or Underwriter within the full extent provided in this meaning of Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations 15 of the Company 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Dealer Manager, such Holder, each Participating Broker-Dealer or Underwriter and each director of the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this AgreementCompany, and otherwise until each Person, if any, who controls the expiration Company within the meaning of Section 15 of the applicable statute 1933 Act or Section 20 of limitationsthe 1934 Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Sources: Registration Rights Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. (a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner partner, and employee, employee of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(iii) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, or (y) further, that the failure of indemnity agreement contained in this Section 6 shall not apply to any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (underwriter to the extent required by law)that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling Holder confirmation of sale to such registration statement, including person if such preliminary prospectus or underwriter was under an obligation to deliver such final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, and employee of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 6(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 6(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)at its own expense except as provided below. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 but shall not relieve the indemnifying party of any liability that it may have to the extent of such prejudiceany indemnified party otherwise than pursuant to this Section 6. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within sixty (60) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder, but in such event such amounts shall be refunded). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own 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 exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel and at its own expenseor counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. (d) If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 6(a) and Section 6.26(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 6(d)(ii) were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i6(d)(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. (e) If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.46(d).
6.6. (f) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1(a) Indemnification by the Company. To the extent permitted by applicable law, the The Company shall agrees to indemnify ------------------------------ and hold harmless each Selling HolderHolder of Registrable Securities, its officers and directors and each underwriter or Agent in any underwritten or agented offering, each Personperson, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify Act from and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses reasonable costs of investigation, incurred by such party pursuant ) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus relating to the Registrable Securities or in any actual amendment or threatened action, suit, proceeding supplement thereto or investigationin any preliminary prospectus, or arising out of or based upon any omission or alleged omission to which any of state therein a material fact required to be stated therein or necessary to make the foregoing Persons may otherwise become subject under the Securities Actstatements therein not misleading, the Exchange Act or other federal or state laws, except insofar as such losses, claims, damages, liabilities and or expenses arise out of of, or are based upon, any such untrue statement or omission or allegation thereof based upon any Violation, information furnished in each case solely writing to the extent that such Violation occurs in reliance upon and in conformity with written information furnished Company by such Selling Holder or its Representatives or controlling persons on such Selling Holder's behalf expressly for use therein; and provided that with respect to any -------- untrue statement or omission or alleged untrue statement or omission made in connection with such registration; providedany preliminary prospectus, however, that (x) the indemnification required by indemnity agreement contained in this Section 6.2 paragraph shall not apply to amounts paid in settlement of the extent that any such loss, claim, damage, liability or expense if settlement is effected without results from the consent fact that a current copy of the relevant Selling Holder prospectus was not sent or given to the person asserting any such loss, claim, damage, liability or expense at or prior to the written confirmation of the sale of the Registrable SecuritiesSecurities concerned to such person if it is determined that the provision of such person with a current copy of the prospectus would have cured the defect giving rise to such loss, which consent shall not be unreasonably withheldclaim, conditioned damage, liability or delayedexpense. The Company also agrees to indemnify, as applicable, (i) the Broker-Dealers who hold Registrable Securities acquired for their own accounts pursuant to the Registered Exchange Offer and their officers, directors and each person who controls such Broker- Dealers, and (yii) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 of notice Underwriters of the commencement of any actionRegistrable Securities and their officers, suitdirectors and each person who controls such Underwriters, proceeding, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 6, such indemnified party shall deliver to on substantially the indemnifying party a written notice same basis as that of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses indemnification of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to Selling Holders provided in this Section 6:
(i) The indemnifying party, 7 if such Broker-Dealers and Underwriters agree in lieu of indemnifying such indemnified party, shall writing to indemnify and contribute to the amount paid or payable by such indemnified party Company on substantially the same basis as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party Selling Holders indemnify and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject contribute to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution Company pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation7.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Exchange and Registration Rights Agreement (Danbury Pharmacal Puerto Rico Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law(a) The Company agrees to indemnify, the Company shall indemnify defend and hold harmless each Selling Initial Purchaser, each Holder, each underwriter or Agent in any underwritten or agented offering, each Personperson (a "CONTROLLING PERSON"), if any, who controls such Selling Holder, underwriter any Initial Purchaser or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to Act and the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable lawrespective officers, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each partners, employees, representatives and agents of its officers who shall have signed any Initial Purchaser, the registration statementHolders or any Controlling Person (each, each Person who controls the Company within the meaning of the Securities Actan "INDEMNIFIED PARTY"), each underwriter or Agent in any underwritten or agented offering from and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses liability, claim or any actions in respect thereof (joint and several), including attorneys’ fees and disbursements and expenses the reasonable cost of investigation, incurred by ) which such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons Indemnified Party may otherwise become subject incur under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in 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 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 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 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; PROVIDED FURTHER that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary or final 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, claims, damages, liabilities and expenses arise out of expenses, liabilities, claims or are based upon any Violationactions purchased such Registrable Securities, in each case solely to the extent that a prospectus relating to such Violation occurs Registrable Securities was required to be delivered by such Holder under the Securities Act in reliance 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 sale of such Registrable Securities to such person, a copy of the final correct prospectus, if the Company had previously notified the Holder that such preliminary or final prospectus should not be used and furnished corrected copies thereof to such Holder in a timely manner so as to permit timely delivery by such Holder of a copy of the corrected prospectus at or prior to written confirmation of sale; PROVIDED FURTHER, that this indemnity agreement will not apply to any loss, damage, expense, liability, claim or action 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); 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 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, and in conformity with written information (the "HOLDER INFORMATION") furnished in writing by or on behalf of such Selling Holder or its Representatives or controlling persons 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, (ii) arises out of or is based upon any omission or alleged omission to state a material fact in connection with such registrationHolder Information required to be stated in any Shelf Registration Statement or Prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or necessary to make such Holder Information not misleading, (iii) 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 (iv) 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), if a prospectus was required to be delivered by such Holder under the Securities Act in connection with such sale and the Holder had received copies of the most recent applicable prospectus in a timely manner so as to permit such delivery; providedand, howeversubject to the limitation set forth in the immediately preceding clause, that (x) each Holder shall reimburse, as incurred, the indemnification required Company for any legal or other expenses reasonably incurred by this Section 6.2 shall not apply to amounts paid the Company or any Company Indemnified Party in settlement of connection with investigating or defending any such loss, claim, 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 expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in 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 any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling HolderHolder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
6.3. Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of (c) If any action, suitsuit or proceeding (each, proceedinga "PROCEEDING") is brought against any person in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), investigation or threat thereof made such person (the "INDEMNIFIED Party") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing for 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 may make a claim under this Section 6Indemnified Party or otherwise, such indemnified party shall deliver except to the indemnifying party a written notice of extent the commencement thereof and the indemnifying party Indemnifying Party is materially prejudiced thereby. Such Indemnified Party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate employ its own counsel in any such actioncase, claim or proceeding but the fees and to participate 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 thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by 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 retained by the indemnifying party would that there may be inappropriate due one or more defenses available to actual it that are different from, additional to or potential differing interests between in conflict with those available to such indemnified party and any other party represented by such counsel in such proceeding Indemnifying Party (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and Indemnifying Party shall not have the right to assume direct that portion of the defense of such action, claim or proceeding Proceeding on behalf of the Indemnified Party, but such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if Indemnifying Party may employ counsel and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to 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 its own 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 its own expense. No indemnifying party 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 to an indemnified party for any settlement of any actionProceeding 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, proceeding or claim (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 the indemnifying partyany Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to effect any settlement of any actionpending 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, proceeding or claim without unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the written consent subject matter of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that such Proceeding and does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing fault or culpability or a failure to act by any indemnified partyor on behalf of such Indemnified Party.
6.4. (d) If the indemnification required by provided for in this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder 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, liabilities expenses, liabilities, claims or expenses actions referred to in this Section 6:
(i) The indemnifying partytherein, then each applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities expenses, liabilities, claims or expenses 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 hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party Company, on the one hand, and indemnified parties of the Holders or the Initial Purchaser, on the other hand, in connection with the actions that statements or omissions which resulted in such losses, claims, damages, liabilities expenses, liabilities, claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company, on the one hand, and indemnified parties of the Holders or the Initial Purchaser, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by, such indemnifying party by the Company or indemnified parties, by the Holders or the Initial Purchaser and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any investigation or proceedingProceeding.
(iie) The parties hereto Company, the Holders and the Initial Purchaser agree that it would not be just and equitable if contribution pursuant to this Section 6.4 6 were determined by pro rata allocation or by any other method of allocation that which does not take into account of the equitable considerations referred to in Section 6.4(i)6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under The Holders' respective obligations to contribute pursuant to this Section 6, the indemnifying parties shall indemnify each indemnified party 6 are several in proportion to the full extent 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 without regard are not exclusive and shall not limit any rights or remedies which may otherwise be available to the relative fault of such indemnifying party or any indemnified party at law or any other equitable consideration referred to in Section 6.4equity.
6.6. (f) The obligations of the Company indemnity and the Selling Holders of Registrable Securities under contribution provisions contained in this Section 6 shall survive the completion remain operative and in full force and effect regardless of (i) any offering termination of Registrable Securities pursuant to a registration statement under this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchaser or any person controlling any Holder or Initial Purchaser, or the Company, or the Company's officers or directors or any person controlling the Company and otherwise until (iii) the expiration sale of the applicable statute of limitationsany Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (SFBC International Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. (a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner partner, and employee, employee of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i1) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusas of the respective date thereof, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii2) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(3) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable under this Section 6(a) in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration, or ; provided,
(yb) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, and other Selling Holder; each officer, director, partner partner, and employee of such underwriter or Agent or other Selling Holder and such controlling PersonPerson and each underwriter to the extent that such Selling Holder participates in an underwritten registration, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 6(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 6(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)at its own expense except as provided below. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if but shall not relieve the indemnifying party does not elect of any liability that it may have to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an any indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayedotherwise than pursuant to this Section 6. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to Any such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. (d) If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 6(a) and Section 6.26(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 6(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation other
(within the meaning of Section 11(fe) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.46(d); provided, however, that if it is determined by a final and non-appealable order of a court of competent jurisdiction that a party receiving indemnification hereunder was not entitled to receive such indemnification, the additional cost, if any, to the indemnifying party of such indemnification shall be promptly reimbursed by such improperly indemnified party to such indemnifying party.
6.6. (f) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To (a) The Company shall indemnify, to the fullest extent permitted by applicable law, the Company shall indemnify each holder of Registrable Securities, its officers, directors, partners, employees and hold harmless each Selling Holderagents, each underwriter or Agent in any underwritten or agented offeringif any, and each Person, if any, who controls such Selling Holder, underwriter or Agent holder within the meaning of Section 15 of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (under the Securities Act or common law or otherwise), joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred resulting from any violation by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any the Company of the foregoing Persons may become subject under provisions of the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such any registration statement or prospectus, including prospectus (and as amended or supplemented if amended or supplemented) or any preliminary prospectus or final prospectus or caused by any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of any prospectus, in light of the circumstances under which they were made, ) not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely except to the extent that it arises out such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses are caused by any untrue statement or alleged untrue statement contained in or by any omission or alleged omission from information concerning any holder of or is based upon (x) a Violation which occurs Registrable Securities furnished in reliance upon and in conformity with written information furnished writing to the Company by the indemnified party such holder expressly for use in connection with therein. If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, no action or failure to act on the part of such registration, underwriters (whether or (y) the failure not such underwriter is an Affiliate of any person entitled holder of Registrable Securities) shall affect the obligations of the Company to indemnification hereunder to deliver or make available to a purchaser indemnify any holder of Registrable Securities (or any other Person pursuant to the extent required by law), a copy of preceding sentence. If the Public Offering pursuant to any registration statementstatement provided for under this Article III is made through underwriters, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered agrees to enter into an underwriting agreement in customary form with such underwriters and the applicable Selling Holder Company agrees to indemnify such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and agents, if any, and each person Person, if any, who controls such persons (underwriters within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as herein before provided above with respect to the indemnification of the Selling Holders.
6.2. To holders of Registrable Securities; provided that the extent permitted by applicable lawCompany shall not be required to indemnify any such underwriter, each Selling Holder shall indemnify and hold harmless the Companyor any officer, each director or employee of its directors, each of its officers who shall have signed the registration statement, each such underwriter or any Person who controls the Company such underwriter within the meaning of Section 15 of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability (or proceedings in respect thereof) or expense if settlement for which indemnification is effected without claimed results from such underwriter's failure to send or give a copy of an amended or supplemented final prospectus to the consent Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the relevant Selling Holder sale of Registrable Securities, which consent shall not be unreasonably withheld, conditioned Securities to such Person if such statement or delayed, omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by underwriter was provided with such Selling Holderamended or supplemented final prospectus.
6.3. Promptly after receipt by an indemnified party under this Section 6 (b) In connection with any registration statement in which a holder of notice of the commencement of any actionRegistrable Securities is participating, suiteach such holder, proceedingseverally and not jointly, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, andindemnify, to the fullest extent permitted by law, the indemnifying party so desiresCompany, jointly with any other indemnifying party similarly given noticeeach underwriter and their respective officers, to assume directors, employees and agents, if any, and each Person, if any, who controls the defense thereof with counsel reasonably satisfactory to Company or such underwriter within the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation meaning 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses Section 15 of the indemnified party and shall not have the right to assume the defense of such actionSecurities Act, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of against any losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses referred resulting from any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission of a material fact required to be stated in the registration statement or prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein (in the case of any prospectus, in light of the circumstances under which they were made) not misleading, but only to the extent that such untrue statement is contained in or such omission is from information so concerning a holder furnished in writing by such holder expressly for use therein; provided that such holder's obligations hereunder shall be limited to an amount equal to the net proceeds to such holder of the Registrable Securities sold pursuant to such registration statement.
(c) Any Person entitled to indemnification under the provisions of this Section 6:
3.7 shall (i) The give prompt notice to the indemnifying party, party of any claim with respect to which it seeks indemnification and (ii) unless in lieu of indemnifying such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, permit such indemnifying party to assume the defense of such claim, with counsel reasonably satisfactory to the indemnified party; and if such defense is so assumed, such indemnifying party shall not enter into any settlement without the consent of the indemnified party if such settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any liability for any settlement made without its consent (which shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article III shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such indemnifying party shall not be obligated to pay the fees and expenses of more than one counsel or firm of counsel for all parties indemnified by such indemnifying party in respect of such claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties in respect to such claim.
(d) If for any reason the foregoing indemnity is unavailable, then the indemnifying party shall contribute to the amount paid or payable by such the indemnified party as a result of such losses, claims, damages, liabilities or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other or (ii) if the allocation provided by clause (i) above is not permitted by Applicable Law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnifying party and the indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, party as well as any other relevant equitable considerations. The relative fault Notwithstanding the foregoing, no holder of such indemnifying party and indemnified parties Registrable Securities shall be determined by reference to, among other things, whether required to contribute any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result in excess of the losses, claims, damages, liabilities and expenses referred amount such holder would have been required to above shall be deemed pay to include, subject to an indemnified party if the limitations set forth in indemnity under Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii3.7(b) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i)was available. No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The obligation of any Person to contribute pursuant to this Section 3.8 shall be several and not joint.
6.5. If indemnification is available under (e) An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 6, 3.7 to or for the indemnifying parties shall indemnify each account of the indemnified party from time to the full extent provided time promptly upon receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in this Section 6 without regard to the relative fault 3.7 shall remain in full force and effect regardless of such indemnifying party any investigation made by or indemnified party on behalf of a participating holder of Registrable Securities, its officers, directors, agents or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company Person, if any, who controls such holder as aforesaid, and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion Transfer of Equity Securities by such holder and the termination of this Agreement for any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsreason.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement, including a Shelf Registration:
6.19.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner and partner, employee, agent and consultant of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading; providedor
(iii) Any violation or alleged violation by the Company of the Securities Act, howeverthe Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any applicable state securities law; PROVIDED, HOWEVER, that the indemnification required by this Section 6.1 SECTION 8.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; PROVIDED, or (y) FURTHER, that the failure of indemnity agreement contained in this SECTION 8 shall not apply to any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (underwriter to the extent required by law)that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling Holder confirmation of sale to such registration statement, including person if such preliminary prospectus or underwriter was under an obligation to deliver such final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.29.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, and employee of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; providedPROVIDED, howeverHOWEVER, that (x) the indemnification required by this Section 6.2 SECTION 8.2 shall not apply to amounts paid in settlement of EXECUTION COPY any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.39.3. Promptly after receipt by an indemnified party under this Section 6 SECTION 8 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 6SECTION 8, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; providedPROVIDED, howeverHOWEVER, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, with the fees and disbursements and expenses unless 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 SECTION 8 but shall not relieve the indemnifying party of any liability that it may have to the extent of such prejudiceany indemnified party otherwise than pursuant to this SECTION 8. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the including any fees and disbursements and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid by to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party) ; PROVIDED, HOWEVER, that if it is ultimately determined that an indemnified party is not entitled to indemnification hereunder such indemnified party shall be obligated to repay the defense, compromise and settlement of indemnifying party. Any such indemnified party shall have the right to employ separate counsel in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof same jurisdiction arising out of the same general EXECUTION COPY allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with its own counsel and appropriate local counsel) at its own expenseany time for all such indemnified parties. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.49.4. If the indemnification required by this Section 6 SECTION 8 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6SECTION 8:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerationsthe relative benefits received by indemnifying party and indemnified parties. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 SECTION 8.1 and Section 6.2SECTION 8.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 SECTION 8.4 were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(iSECTION 8.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.59.5. If indemnification is available under this Section 6SECTION 8, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 8 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4SECTION 8.4.
6.69.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 SECTION 8 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.otherwise. EXECUTION COPY
Appears in 1 contract
Sources: Registration Rights Agreement (National Record Mart Inc /De/)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the (a) The Company shall agrees to indemnify and hold harmless the Dealer Manager, each Selling Holder, each Participating Broker-Dealer, each Person who participates as an underwriter (any such Person being an “Underwriter”) and the affiliates, directors, officers, agents, representatives and employees of the Dealer Manager, any Holder, Participating Broker-Dealer or Agent in any underwritten or agented offering, Underwriter and each Person, if any, who controls such Selling the Dealer Manager, any Holder, underwriter Participating Broker-Dealer or Agent within the meaning of Underwriter (each an “Indemnified Person”) with respect to the Securities Act, and each officer, director, partner Exchange Notes as follows:
(i) from and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, actions, claims, damagesdamages or liabilities, liabilities and will reimburse any Indemnified Person for all costs and expenses (joint or several)including, including attorneys’ fees and disbursements and expenses of investigationbut not limited to, reasonable counsel fees) as they are incurred by such party pursuant Indemnified Person in connection with investigating, preparing to defend or defending any actual such action or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, claim insofar as such losses, actions, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus Registration Statement (or any “issuer free writing prospectus” as such term is defined in Rule 433 amendment or supplement thereto) pursuant to which Exchange Notes or Transfer Restricted Securities were registered under the Securities 1933 Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therefrom of a material fact required or allegedly required to be stated thereintherein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto) pursuant to which Exchange Notes or Transfer Restricted Securities were registered under the 1933 Act, or the omission or alleged omission therefrom of a material fact necessary or allegedly necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(ii) from and against any and all actions, claims, damages, liabilities or expenses whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 4(c) below) any such settlement is effected with the written consent of the Company; provided, however, that the indemnification Company will not be liable to any Indemnified Person to the extent that any claims, liabilities, losses, damages, costs or expenses (A) are finally determined by a court of competent jurisdiction to have resulted primarily from the gross negligence, bad faith or willful misconduct of such Indemnified Person or (B) arise out of or are based upon (x) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any Prospectus, (y) any omission or alleged omission to state in any Registration Statement a material fact required to be stated therein or necessary to make the statements therein not misleading, or (z) any omission or alleged omission to state in any Prospectus a material fact in any Prospectus necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, if in either such case such statement or omission relates solely to a Holder, Participating Broker-Dealer, Underwriter or the Dealer Manager and was made in reliance upon and in conformity with information furnished in writing by such Holder, Participating Broker-Dealer, Underwriter or the Dealer Manager to the Company expressly for use therein. The Company shall not be liable under this Section 6.1 shall not apply to amounts paid in 4 for any settlement of any such loss, claim, damage, liability claim or expense if such settlement is action effected without the consent of the Company (its prior written consent, which consent shall not be unreasonably withheld.
(b) Each Holder severally, conditioned but not jointly, agrees to indemnify and hold harmless the Company, each Underwriter and the other selling Holders, and each of their affiliates, directors, officers, agents, representatives and employees and each Person, if any, who controls the Company, any Underwriter or delayed)any other selling Holder, nor shall against any and all losses, actions, claims, damages, liabilities and expense described in the Company be liable indemnity contained in any such case for any such lossSection 4(a) hereof, claimas incurred, damage, liabilitybut only with respect to untrue statements or omissions, or expense solely to alleged untrue statements or omissions, made in the extent that it arises out of Shelf Registration Statement (or is based upon any amendment thereto) or any Prospectus included therein (xor any amendment or supplement thereto) a Violation which occurs in reliance upon and in conformity with written information with respect to such Holder furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with the Shelf Registration Statement (or any amendment thereto) or such registrationProspectus (or any amendment or supplement thereto); provided, however, that (x) the indemnification required by this Section 6.2 no such Holder shall not apply to amounts paid be liable for any claims hereunder in settlement excess of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross net proceeds from the applicable offering received by such Selling HolderHolder from the sale of Transfer Restricted Securities pursuant to such Shelf Registration Statement.
6.3. (c) The Company will not, without the prior written consent of a Holder, Participating Broker-Dealer, Underwriter or the Dealer Manager, as the case may be, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought by an Indemnified Person hereunder (when an Indemnified Person is or could have been a party to such claim, action, suit or proceeding), unless such settlement, compromise or consent (i) includes an unconditional written release (in form and substance reasonably satisfactory to the Indemnified Persons) of the Indemnified Persons from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an Indemnified Person.
(d) Promptly after receipt by an indemnified party Indemnified Person under this Section 6 4 of notice of the commencement of any action, suitsuch Indemnified Person will, proceeding, investigation or threat thereof made in writing for which such indemnified party may make if a claim in respect thereof is to be made against the Company under this Section 64, such indemnified party shall deliver to notify the indemnifying party a written notice Company in writing of the commencement thereof thereof; but the omission so to notify the Company (i) will not relieve the Company from any liability which it may have to any Indemnified Person otherwise than under this Section 4 unless and to the indemnifying party shall have extent such failure results in the right forfeiture by the Company of substantial rights and defenses and (ii) will not, in any event, relieve the Company from any obligations to any Indemnified Person other than the indemnification obligation provided in this Section 4. In case any such action is brought against any Indemnified Person, and it notifies the Company of the commencement thereof, the Company will be entitled to participate in, therein and, to the extent the indemnifying party so desiresthey may wish to, jointly with any other indemnifying party similarly given notice, to may assume the defense thereof thereof, with counsel reasonably satisfactory to the partiessuch Indemnified Person; provided, however, that an indemnified party shall have if the right to retain separate counsel defendants in any such actionaction include both the Indemnified Person and the Company and the Indemnified Person shall have concluded that there may be one or more legal defenses available to it and/or other Indemnified Persons that are different from or additional to those available to the Company, claim or proceeding and to participate in then the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and Company shall not have the right to assume direct the defense of such action, claim or proceeding action on behalf of such indemnified partyIndemnified Person(s) and such Indemnified Person(s) shall have the right to select separate counsel to defend such action on behalf of such Indemnified Person(s). The failure After notice from the Company to deliver written notice such Indemnified Person of its election so to assume the indemnifying party within a reasonable time following the commencement defense thereof, approval by such Indemnified Person of any counsel appointed to defend such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent approval shall not be unreasonably withheld, conditioned the retention of such counsel by the Company in a timely manner, the Company will not be liable to such Indemnified Person under this Section 4 for any legal or delayedother expenses, other than reasonable costs of investigation subsequently incurred by such Indemnified Person in connection with the Company’s defense thereof, unless (i) the Indemnified Person shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the Company shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances representing the Indemnified Persons who are parties to such action or actions) or (ii) the Company has authorized the employment of counsel for the Indemnified Person at the expense of the Company. No indemnifying party shall consent After such notice from the Company to such Indemnified Person, approved by such Indemnified Person and retention of such counsel by the Company, the Company will not be liable for the losses, costs and expenses of any settlement of any action, proceeding or claim such action effected by such Indemnified Person without the written consent of the indemnifying partyCompany, unless such Indemnified Person waives all of its rights under this Section 4, in which consent shall not be unreasonably withheld, conditioned or delayed, that does not include case the giving to Indemnified Person may effect such indemnified party of an unconditional release from all liability in respect of a settlement without such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyconsent.
6.4. If (e) In circumstances in which the indemnification required by indemnity agreement provided for in the preceding paragraphs of this Section 6 from the indemnifying party 4 is unavailable or insufficient to hold harmless an indemnified party hereunder Indemnified Person in respect of any losses, claims, damagesdamages or liabilities (or actions in respect thereof), liabilities or expenses referred to in this Section 6:
(i) The indemnifying partythe Company, in lieu of indemnifying such indemnified partyorder to provide for just and equitable contribution, shall contribute to the amount paid or payable by such indemnified party Indemnified Person as a result of such losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) in such proportion as is appropriate to reflect (i) the relative benefits received by the Company on the one hand and the Indemnified Person(s) on the other hand or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of the indemnifying party Company on the one hand and indemnified parties the Indemnified Person(s) on the other hand in connection with the actions that resulted in such losses, claims, damagesdamages or liabilities (or actions in respect thereof). The relative benefits received by the Company on the one hand and the Indemnified Person(s) on the other hand shall be deemed to be in the same proportion as (i) the relative benefits received by the Company from the initial offering and sale of the Securities, liabilities or expenseson one hand, as well as any other relevant equitable considerationsbears to (ii) the relative benefit received by a Holder from receiving securities registered under the 1933 Act, on the other. The relative fault of such indemnifying party the Company on the one hand and indemnified parties the Holders on the other hand shall be determined by reference to, among other things, whether any Violation has been committed by, such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied byby the Company, such indemnifying party or indemnified parties, the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result indemnity, reimbursement and contribution obligations of the losses, claims, damages, liabilities and expenses referred to above Company under this Agreement shall be deemed in addition to includeany rights that a Holder or any other Indemnified Person may have at common law or otherwise, subject to including any other agreements by and among the limitations set forth in Section 6.1 parties hereto. The Company and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto the Holders agree that it would not be just and equitable if the amount of such contribution pursuant to this Section 6.4 were determined by pro rata or per capita allocation (even if the Company on the one hand and the Indemnified Person(s) on the other hand were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to in this Section 6.4(i)4. No Person that is Notwithstanding the provisions of this Section 4, no Holder shall be required to contribute any amount in excess of the amount by which the net proceeds received by such Holder from the exchange of the Transfer Restricted Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission with respect to the Securities or Exchange Notes from the exchange of the Transfer Restricted Securities, and no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under For purposes of this Section 64, each Person, if any, who controls the indemnifying parties shall indemnify Dealer Manager, any Holder, each indemnified party to Participating Broker-Dealer or Underwriter within the full extent provided in this meaning of Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations 15 of the Company 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Dealer Manager, such Holder, each Participating Broker-Dealer or Underwriter and each director of the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this AgreementCompany, and otherwise until each Person, if any, who controls the expiration Company within the meaning of Section 15 of the applicable statute 1933 Act or Section 20 of limitationsthe 1934 Act shall have the same rights to contribution as the Company.
Appears in 1 contract
Sources: Registration Rights Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the (a) The Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offeringtheir respective officers and directors, and each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of either Section 15 of the Securities ActAct or Section 20 of the Exchange Act and any agents, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, representatives or advisers thereof against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements expenses and expenses reasonable costs of investigation) (collectively, "Damages") incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationinvestigation arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, any Prospectus, or any amendment or supplement to which any of the foregoing Persons may become subject under foregoing, (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the Securities Actstatements therein (in the case of a Prospectus, in light of the Exchange Act circumstances then existing) not misleading, or other federal (iii) any violation or alleged violation by the Company of any United States federal, state laws, 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 registration except in each case insofar as such losses, claims, damages, liabilities and expenses the same arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any such untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs made in reliance upon on and in conformity with written information with respect to the Holders furnished to the Company by the indemnified party Holders or their counsel expressly for use therein. Notwithstanding anything in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (this Agreement to the extent required by law)contrary, a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered not be required to indemnify any Person whose conduct has been determined by a final non-appealable judgment of a court of competent jurisdiction to constitute bad faith, gross negligence or willful misconduct. Subject to Section 11(b) hereof, the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also not be responsible hereunder for the fees and expenses of more than one counsel (together with local counsel, if any) for the indemnified parties. In connection with an Underwritten Offering, the Company shall indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distributionunderwriters thereof, their officers, directors, directors and agents and employees and each person Person who controls such persons 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 Selling Holders.
6.2. To (b) Any Person entitled to indemnification hereunder agrees to give prompt written notice to the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless indemnifying party after the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred receipt by such indemnified party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 of written notice of the commencement of any action, suit, proceeding, proceeding or investigation or threat thereof made in writing for which such indemnified party may make a claim under indemnification or contribution pursuant to this Section 6, 11 (provided that failure to give such indemnified party notification shall deliver to not affect the obligations of the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right pursuant to participate in, and, this Section 11 except to the extent the indemnifying party so desiresshall have been materially prejudiced as a result of such failure). In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party 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 given noticenotified, to assume the defense thereof thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the parties; providedconsent of the indemnified party, howeverbe 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 11 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 an counsel selected pursuant to the immediately preceding sentence is unsatisfactory) or if the indemnifying party shall not have demonstrated to the reasonable satisfaction of the indemnified party its ability to finance such defense, or (ii) the indemnified party shall have reasonably concluded or been advised by counsel that there may be legal defenses available to such indemnified party which could result in a conflict of interest for such counsel or prejudice the prosecution of the defenses available to such indemnified party, then such indemnified party shall have the right to retain employ separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with choosing, at the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent expense of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to entry of any judgment or enter into any settlement without the consent (which consent, in the case of any an action, suit, claim or proceeding or claim without the written consent of the indemnifying partyexclusively seeking monetary relief, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include ) of the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any applicable indemnified party.
6.4. (c) If the indemnification required by this Section 6 from the indemnifying party provided for in this Section 11 is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses Damages referred to in this Section 6:
(i) The therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses Damages in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions that or omissions which resulted in such losses, claims, damages, liabilities or expensesDamages, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties party shall be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed made by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Damages referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.211(b) hereof, any legal or and other fees or and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding.
(ii) . The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 11(c) were determined by pro rata allocation or by any other method of allocation that which does not take into account of the equitable considerations referred to above in this Section 6.4(i11(c). Any underwriter's obligations in this Section 11(c) to contribute shall be several in proportion to the number of Registrable Securities underwritten by them and not joint. Notwithstanding the provisions of this Section 11(c), no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any Damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 611, the indemnifying parties shall indemnify each indemnified party to the full fullest extent provided in this Section 6 11(a) hereof without regard to the relative fault of such indemnifying party parties or indemnified party or any other equitable consideration referred to provided for in this Section 6.411(c).
6.6(d) The provisions of this Section 11 shall be in addition to any liability which any party may have to any other party and shall survive any termination of this Agreement. The obligations of the Company and the Selling Holders of Registrable Securities under indemnification provided by this Section 6 11 shall survive the completion Transfer of such Registrable Securities by the Holders and shall remain in full force and effect irrespective of any offering investigation made by or on behalf of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsan indemnified party.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1(a) Indemnification by the Company. To The Company shall indemnify, to ------------------------------- the fullest extent permitted by applicable law, the Company shall indemnify each holder of Registrable Securities, its officers, directors and hold harmless each Selling Holderagents, each underwriter or Agent in any underwritten or agented offeringif any, and each Person, if any, who controls such Selling Holder, underwriter or Agent holder within the meaning of Section 15 of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (under the Securities Act or common law or otherwise), joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred resulting from any violation by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any the Company of the foregoing Persons may become subject under provisions of the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such any registration statement or prospectus, including prospectus (and as amended or supplemented if amended or supplemented) or any preliminary prospectus or final prospectus or caused by any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of any prospectus, in light of the circumstances under which they were made, ) not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely except to the extent that it arises out of such losses, claims, damages, liabilities (or is based upon (xproceedings in respect thereof) a Violation which occurs or expenses are caused by any untrue statement or alleged untrue statement contained in reliance upon and or by any omission or alleged omission from information concerning any holder furnished in conformity with written information furnished writing to the Company by the indemnified party such holder expressly for use in connection with therein. If the offering pursuant to any registration statement provided for under this Section 2 is made through underwriters, no action or failure to act on the part of such registration, underwriters (whether or (y) the failure not such underwriter is an affiliate of any person entitled holder of Registrable Securities) shall affect the obligations of the Company to indemnification hereunder to deliver or make available to a purchaser indemnify any holder of Registrable Securities (or any other Person pursuant to the preceding sentence. If the offering pursuant to any registration statement provided for under this Section 2 is made through underwriters, the Company agrees, to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers to enter into an underwriting agreement in customary form with such underwriters and similar securities industry professionals participating in the distributionto indemnify such underwriters, their officers, directorsdirectors and agents, agents and employees if any, and each person Person, if any, who controls such persons (underwriters within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as hereinbefore provided above with respect to the indemnification of the Selling Holders.
6.2. To holders of Registrable Securities; provided that the extent permitted by applicable lawCompany shall not be required to indemnify any such underwriter, each Selling Holder shall indemnify and hold harmless the Company, each or any officer or director of its directors, each of its officers who shall have signed the registration statement, each such underwriter or any Person who controls the Company such underwriter within the meaning of Section 15 of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability (or proceedings in respect thereof) or expense if settlement for which indemnification is effected without claimed results from such underwriter's failure to send or give a copy of an amended or supplemented final prospectus to the consent Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders sale of Registrable Securities under this Section 6 shall survive to such Person if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsunderwriter was provided with such amended or supplemented final prospectus.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the (a) The Company shall indemnify each of the Selling Stockholders, and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, person (if any, ) who controls such Selling Holder, underwriter or Agent Stockholder within the meaning of Section 15 of the Securities Act of 1933, as amended (the "Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons"), against any and all losses, claims, damages, damages and liabilities and expenses expense (joint or several), including attorneys’ all reasonable fees and disbursements and expenses of investigationcounsel incurred in defending against any such claim, incurred damage or liability) caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such the registration statement filed or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under to be filed with the Securities Actand Exchange Commission (the "Commission"), in connection with the Public Offering, as the same may be amended or supplemented from time to time (the "Registration Statement") or in any prospectus filed with, or delivered to, the Commission in connection with the Public Offering, or caused by any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therefrom of a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in the light of the circumstances under in which they were made, not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any -------- ------- insofar as such losslosses, claimclaims, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liabilitydamages, or expense solely liabilities are caused by an untrue statement of a material fact contained in, or any material fact omitted from, information relating to the extent that it arises out of or is based upon (x) a Violation which occurs Selling Stockholder furnished in reliance upon and in conformity with written information furnished writing to the Company by the indemnified party such Selling Stockholder for use in connection with such registrationthe Registration Statement or any amendment or supplement thereto, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law)such prospectus, a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that then the Company shall have timely delivered no obligation hereunder to indemnify the applicable Selling Holder Stockholder furnishing such registration statementinformation.
(b) Each Selling Stockholder shall indemnify each of the Company and the other Selling Stockholders, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person (if any) who controls the Company or such persons (other Selling Stockholder within the meaning of Section 15 of the Securities Act Act, against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of counsel incurred in defending against any such claim, damage or Section 20 liability) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or in any prospectus filed with, or delivered to, the Commission in connection with the Public Offering, or caused by any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the Exchange Act) to the same extent as provided above circumstances in which they were made, not misleading, but only with respect to information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement or any amendment or supplement thereto, or any such prospectus, provided, however, no -------- ------- Selling Stockholder shall be liable in an amount that exceeds the aggregate public offering price of the Stockholder Shares sold by the Selling Stockholder, net of the underwriting discount.
(c) The indemnity agreements of the Company and the Selling Stockholders contained in this Section 2 shall remain in effect regardless of any investigation made by or on behalf of any indemnified party and shall survive delivery of the shares of Common Stock pursuant to the Public Offering.
(d) In order to provide for just and equitable contribution in circumstances in which indemnification provided for in paragraph (a) of this Section 2 is unavailable, the Company and each of the Selling Holders.
6.2. To Stockholders shall contribute to the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all aggregate losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ all reasonable fees and disbursements and expenses of investigation, counsel incurred by such party pursuant to in defending against any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent liability), to which one or more of the relevant Selling Holder of Registrable Securities, which consent shall not Stockholders may be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses subject in such proportion as is appropriate to reflect the relative relevant fault of the indemnifying party Company and indemnified parties the respective Selling Stockholders in connection with the actions statements or omissions that resulted in such losses, claims, damages, liabilities or expenses, and expenses as well as any other relevant equitable considerations. The relative fault : provided, however, that: -------- -------
(i) in any case where any Selling Stockholder is seeking contribution hereunder, such Selling Stockholder shall be entitled to contribution from the remaining Selling Stockholders pursuant to this Agreement, only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any case be required to contribute or make any payments under this paragraph (d) which in the aggregate exceed his pro rata share of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to includedetermined in accordance with the total number of Company Shares and Stockholder Shares sold by each respective party hereto provided, subject to the limitations however, that, -------- ------- except as set forth in Section 6.1 and Section 6.2subparagraph (iii) of this paragraph (d), any legal or other fees or expenses reasonably incurred no Selling Stockholder shall be liable to contribute an amount that exceeds the aggregate public offering price of the Stockholder Shares sold by such party in connection with any investigation or proceeding.the Selling Stockholder, net of the underwriting discount;
(iiiii) The parties hereto agree that it would not be just and equitable if in the event the Company or any Selling Stockholder defaults on its obligation to make any contribution pursuant to this paragraph (d), the amount that each of the remaining parties is obligated to contribute hereunder shall be increased in accordance with the relation of the number of shares of Common Stock being sold by each such remaining party to the aggregate number of shares of Common Stock being sold by all such remaining parties;
(iv) neither the Company nor any Selling Stockholder will be required to make any contribution to another Selling Stockholder with respect to matters for which the other Selling Stockholder would not otherwise be entitled to be indemnified under paragraph (a) of this Section 6.4 were determined by pro rata allocation or by any other method 2 had such indemnification been available; and
(v) for purposes of allocation that does not take into account the equitable considerations referred to in Section 6.4(ithis paragraph (d). No Person that is guilty of fraudulent misrepresentation (, each person, if any, who controls a Selling Stockholder within the meaning of Section 11(f15 of the Act, and each director, officer or partner (if any) of such Selling Stockholder, shall have the Securities Act) shall be entitled same rights to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of Agreement as such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4Selling Stockholder.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Indemnification; Contribution. If (a) In the event of any Registrable registration of any equity securities of the Corporation under the Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by Act or applicable lawCanadian securities Laws, the Company shall Corporation will, and hereby does agree to, indemnify and hold harmless each Selling Holderharmless, in the case of any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, the seller of any Registrable Shares covered by such registration statement or prospectus, its respective directors and officers, partners and members, each other Person who participates as an underwriter in the offering or Agent in any underwritten or agented offeringsale of such securities, and each other Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus seller or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several)expenses, including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of the foregoing Persons them may otherwise become subject under the Securities Act, the Exchange Act applicable Canadian securities Laws or other federal or state lawsotherwise, insofar as such losses, claims, damages, liabilities and or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any Violationuntrue statement or alleged untrue statement of any material fact contained in any registration statement or prospectus under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus included therein or filed with applicable Canadian securities regulatory authorities, or any amendment or supplement thereto, or any document incorporated by reference therein, 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 not misleading; provided, however, that the Corporation shall not be liable in each any such case solely to the extent that any such Violation occurs loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (x) an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus or amendment or supplement thereto, in reliance upon and in conformity with 10 written information furnished to the Corporation for use in the preparation thereof by such seller or underwriter, as the case may be, or (y) an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus but notified to such seller and underwriter prior to any sale or other disposition of Registrable Shares and subsequently corrected by the Corporation in any final prospectus, amendment or supplement made available to such seller or underwriter but which final prospectus, amendment or supplement was not used by such seller or underwriter in the sale or other disposition of Registrable Shares that gave rise to such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense. This indemnity shall be in addition to any liability the Corporation may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or any such director or officer, underwriter or controlling Person and shall survive the transfer of such securities by such seller.
(b) The Corporation may require, as a condition to including any Registrable Shares in any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, that the Corporation shall have received an agreement satisfactory to it from (i) the prospective seller of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 9(a), except that any such prospective seller shall not in any event be liable to the Corporation pursuant thereto for an amount in excess of the net proceeds of the sale of such prospective seller's Registrable Shares so to be sold) the Corporation, each director of the Corporation and each of the Corporation's officers who signed the registration statement or prospectus, each such underwriter of such securities, and each other Person, if any, who controls the Corporation or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and (ii) each such underwriter of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 9(a) above) the Corporation, each officer who signed the registration statement or prospectus and each director of the Corporation, each prospective seller, and each other Person, if any, who controls the Corporation or any such prospective seller within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect to any untrue statement in or omission from such registration statement, any preliminary prospectus, final prospectus, or any amendment or supplement thereto, if such untrue statement or omission was made in reliance upon and in conformity with written information furnished by such Selling Holder prospective seller or its Representatives or controlling persons expressly such underwriter, as the case may be, to the Corporation for use in connection with the preparation of such registration; providedregistration statement, howeverpreliminary prospectus, that (x) the indemnification required by this Section 6.2 final prospectus, amendment or supplement. Such indemnity shall not apply to amounts paid remain in settlement full force and effect regardless of any such loss, claim, damage, liability investigation made by or expense if settlement is effected without the consent on behalf of the relevant Selling Holder Corporation or any such director, officer or controlling Person and shall survive the transfer of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received such securities by such Selling Holderseller.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, suit, proceeding, investigation action or threat thereof made in writing for which such indemnified party may make proceeding (including any governmental investigation) involving a claim under this referred to in either Section 69(a) above or (b) above, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall deliver to not relieve the indemnifying party a written notice of its obligations under the commencement thereof and preceding provisions of this Section 9, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, the indemnifying party shall have be entitled to assume the right to participate in, and, to the extent the indemnifying party so desiresdefense thereof, jointly with any other indemnifying party similarly given noticenotified, to the extent that it may wish, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof with counsel reasonably satisfactory thereof, the indemnifying party will not be liable to the parties; provided, however, that an such indemnified party shall have for any legal or other expenses subsequently incurred by the right to retain separate counsel indemnified party in any such action, claim or proceeding and to participate in connection with the defense thereof. If, providedin the indemnified party's reasonable judgment, that a conflict of interest between such indemnified party and indemnifying parties may exist in respect of such claim, the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted entitled to participate in the defense thereof with its own counsel and at its own expense. No the indemnifying party shall not be liable to an indemnified party for the fees and expenses of more than one counsel for all sellers of Registrable Shares, or more than one counsel for the underwriters in connection with any settlement of any action, proceeding one action or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned separate but similar or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyrelated actions.
6.4. (d) If the indemnification required by provided for in the foregoing clauses (a), (b) and (c) of this Section 6 from the indemnifying party 9 is unavailable to an the indemnified party hereunder parties in respect of any losses, claims, damages, damages or liabilities or expenses referred to in this Section 6:
(i) The therein, 11 then each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount amounts paid or payable by such indemnified party parties as a result of such losses, claims, damagesdamages or liabilities (i) as between the Corporation and the holders of Registrable Shares covered by a registration statement, liabilities on the one hand, and the underwriters, on the other, in such proportion as is appropriate to reflect the relative benefits received by the Corporation and such holders, on the one hand, and the underwriters, on the other, from the offering of the Registrable Shares, or expenses if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits but also the relative fault of the Corporation and such holders, on the one hand, and of the underwriters, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations, and (ii) as between the Corporation, on the one hand, and each holder of Registrable Shares covered by a registration statement or prospectus, on the other, in such proportion as is appropriate to reflect the relative fault of the indemnifying party Corporation and indemnified parties of each such holder in connection with the actions that resulted in such losses, claims, damages, liabilities statements or expensesomissions, as well as any other relevant equitable considerations. The relative benefits received by the Corporation and such holders, on the one hand, and the underwriters, on the other, shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Corporation and such holders bear to the total underwriting discounts and commissions received by the underwriters. The relative fault of the Corporation and such indemnifying party holders, on the one hand, and indemnified parties of the underwriters, on the other, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Corporation and such holders or by the underwriters. The relative fault of the Corporation, on the one hand, and of each such indemnifying party holder, on the other, shall be determined by reference to, among other things, whether the untrue or indemnified partiesalleged untrue statement of a material fact relates to information supplied by such party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid statement or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceedingomission.
(iie) The parties hereto Corporation and the holders of Registrable Shares agree that it would not be just and equitable if contribution pursuant to this Section 6.4 9(d) were determined by pro rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account of the equitable considerations referred to in the next preceding paragraph. Notwithstanding the provisions of Section 6.4(i9(d), no holder of Registrable Shares shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Shares of such holder were offered to the public exceeds the amount of any damages that such holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under The obligation of the holders of Registrable Shares to contribute pursuant to this Section 6, 9 is several in the indemnifying parties shall indemnify each indemnified party proportion that the proceeds of the offering received by such holder bears to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations total proceeds of the Company offering received by all Holders and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsnot joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Odyssey Re Holdings Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. (a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner partner, and employee, employee of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(iii) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, providedfurther, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel indemnity agreement contained in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.this
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under (a) The Company agrees, notwithstanding the termination of this Agreement:
6.1. To , to indemnify, to the fullest extent permitted by applicable law, the Company shall indemnify each holder of Registrable Securities, its officers, directors, employees, advisors, agents and hold harmless Affiliates and each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who Person that controls such Selling Holder, underwriter or Agent (within the meaning of the Securities Act) such holder (collectively, “Holder Indemnified Parties”) from and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several)expenses, including attorneys’ fees and disbursements and expenses of investigationinvestigation (collectively, incurred “Losses”), caused by such party pursuant any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto, any omission or alleged omission of a material fact required to any actual be stated therein or threatened action, suit, proceeding or investigationnecessary to make the statements therein not misleading, or to which any violation or alleged violation by the Company of the foregoing Persons may become subject Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or other federal or any applicable state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingsecurities law; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned liable to any holder for any Losses that are (i) caused by or delayed), nor shall the Company be liable contained in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished in writing to the Company by the indemnified party a Holder Indemnified Party expressly for use in connection with such registration, therein or (yii) the caused by such Holder Indemnified Party’s failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any the registration statement, including any preliminary statement or prospectus or final prospectus contained therein or any amendments or supplements thereto (if after the same was required by applicable law to be delivered or made available)Company has furnished such Holder Indemnified Party in a timely manner with a sufficient number of copies of the same. In connection with an underwritten offering, provided, that the Company shall have timely delivered to the applicable Selling Holder indemnify such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers their officers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees directors and each person Person who controls such persons 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 Selling Holdersholders of Registrable Securities.
6.2. To (b) In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statementofficers, employees, agents and Affiliates and each Person who controls the Company (within the meaning of the Securities Act and the Exchange Act, each underwriter or Agent in any underwritten or agented offering ) the Company from and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several)resulting from any untrue or alleged untrue statement of material fact contained in the registration statement, including attorneys’ fees and disbursements and expenses prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of investigationa material fact required to be stated therein or necessary to make the statements therein not misleading, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely but only to the extent that such Violation occurs untrue statement or omission is contained in reliance upon and any information or affidavit so furnished in conformity with written information furnished writing by such Selling Holder or its Representatives or controlling persons holder expressly for use in connection therein; provided that the obligation to indemnify shall be individual, not joint and several, for each holder and shall be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with such registration; provided, however, respect to which it seeks indemnification (provided that (x) the indemnification required by this Section 6.2 failure to give prompt notice shall not apply impair any Person’s right to amounts paid indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in settlement such indemnified party’s reasonable judgment a conflict of any interest between such loss, indemnified and indemnifying parties may exist with respect to such claim, damagepermit 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 shall not be subject to any liability or expense if for any settlement is effected made by the indemnified party without the its consent of the relevant Selling Holder of Registrable Securities, which (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, conditioned or delayedelects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one (y1) counsel (plus one (1) local counsel in no event shall each applicable jurisdiction) for all parties indemnified by such indemnifying party with respect to such claim, unless in the amount reasonable judgment of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 a conflict of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which interest may exist between such indemnified party may make a claim under this Section 6, and any other of such indemnified party shall deliver parties with respect to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an such claim. The indemnified party shall have the right to retain employ separate counsel in any such action, claim or proceeding action and to participate in the defense thereof, provided, that but the fees and expenses of such counsel shall be paid by the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by (x) the indemnifying party would be inappropriate due agrees to actual pay the same, (y) the indemnifying party fails to assume the defense of such action with counsel satisfactory to the indemnified party in its reasonable judgment or potential differing interests between such (z) the indemnified party reasonably believes that the joint representation of the indemnified party and any other party represented by such counsel in such proceeding (in which including but not limited to the indemnifying party) would be inappropriate under applicable standards of professional conduct. In the case of clause (y) above and (z) above, the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding action on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any actionshall, proceeding or claim without the written consent of the indemnifying indemnified party, which consent shall not be unreasonably withheldeffect the settlement or compromise of, conditioned or delayed. No indemnifying party shall consent to any settlement the entry of any actionjudgment with respect to, proceeding any pending or threatened action or claim without in respect of which indemnification or contribution may be sought hereunder (whether or not the written consent indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (1) includes an unconditional release of the indemnifying party, which consent shall not be unreasonably withheld, conditioned indemnified party from all liability arising out of such action or delayed, that claim and (2) does not include the giving a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of any indemnified party. The rights afforded to any indemnified party hereunder shall be in addition to any rights that such indemnified party may have at common law, by separate agreement or otherwise.
(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of an unconditional release from all liability in respect any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such action, proceeding or claim or that requires an admission indemnified party and shall survive the transfer of wrongdoing by any indemnified partyRegistrable Securities.
6.4. (e) If the indemnification required by this Section 6 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation action in question has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction in question. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 6(a) and Section 6.26(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 6(e) were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i6(e)(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Indemnification; Contribution. If (a) In connection with any registration of Registrable Securities are included in a registration statement under this Agreement:
6.1. To pursuant to Section 2.01, Section 2.02 or Section 2.03 hereof, Parent agrees to indemnify and hold harmless, to the fullest extent permitted by applicable lawLaw, the Company shall indemnify Stockholder, its Affiliates, directors, officers and hold harmless stockholders and each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, Person who controls such Selling Holder, underwriter or Agent Stockholder within the meaning of either Section 15 of the Securities ActAct or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities liabilities, judgments, actions and expenses (including reasonable attorneys’ fees) joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred several caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement any part of any Registration Statement or prospectus, including any preliminary prospectus or final prospectus used in connection with the Registrable Securities or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities ActIssuer FWP, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of a prospectus, in the light of the circumstances under which they were made, ) not misleading; providedprovided that Parent will not be required to indemnify any Indemnified Person for any losses, howeverclaims, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of damages, liabilities, judgments, actions or expenses resulting from any such loss, claim, damage, liability untrue statement or expense omission if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned untrue statement or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs omission was made in reliance upon on and in conformity with written information with respect to any Indemnified Person furnished to the Company Parent in writing by the indemnified party Stockholder expressly for use in therein.
(b) In connection with such registrationany Registration Statement, preliminary or final prospectus, or (y) the failure of any person entitled Issuer FWP, Stockholder agrees to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law)indemnify Parent, a copy of any registration statementits Directors, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder its officers who sign such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees Registration Statement and each person Person, if any, who controls such persons Parent (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from Parent to Stockholder, but only with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant information with respect to any actual or threatened action, suit, proceeding or investigation, or Indemnified Person furnished to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, Parent in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished writing by such Selling Holder or its Representatives or controlling persons Stockholder expressly for use in connection with such registrationRegistration Statement, preliminary or final prospectus, or Issuer FWP.
(c) In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 2.08(a) or (b), such Person (hereinafter called the “indemnified party”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing; provided, however, provided that (x) the indemnification required by this Section 6.2 failure to give such notice shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to relieve the indemnifying party a written notice of its obligations pursuant to this Agreement except to the commencement thereof and extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit 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 given notice, to assume the defense thereof of such claim, action or proceeding with counsel reasonably satisfactory to the partiesindemnified party; providedand (iii) pay the fees and disbursements of such counsel related to such claim, howeveraction or proceeding. In any such claim, that an action or pro- ceeding, any indemnified party shall will have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, but the fees and disbursements and expenses unless representation of such counsel will be at the expense of such indemnified party by the counsel retained by unless (A) the indemnifying party and the indemnified party have mutually agreed to the retention of such counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel, with a copy provided to Parent, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing conflicting interests between such indemnified party and any other party represented by such counsel in such proceeding them or (in which case C) the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right has failed to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability employ counsel reasonably satisfactory to the indemnified party under this Section 6 to the extent of such prejudiceparty. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, It is understood that the indemnifying party shall be permitted to participate will not, in connection with any claim, action or proceeding or related claims, actions or proceedings in the defense thereof with its own counsel and at its own expense. No indemnifying party shall same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party will not be liable for any settlement of any actionclaim, action or proceeding or claim effected without the its written consent of the indemnifying party, (which consent shall not be unreasonably withheld), conditioned but if such claim, action or delayedproceeding is settled with such consent or if there has been a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall will, without the prior written consent to of the indemnified party, effect any settlement of any action, pending or threatened proceeding in respect of which any indemnified party is or claim without the written consent of the indemnifying could have been a party and indemnity could have been sought hereunder by such indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to unless such settlement includes an unconditional release of such indemnified party of an unconditional release from all liability in respect on claims that are the subject matter of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyproceeding.
6.4. (d) If the indemnification required by provided for in this Section 6 2.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities liabilities, judgments, actions or expenses referred to in this Section 6:
(i) The 2.08, then the indemnifying party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities liabilities, judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of Parent, on the one hand, and Stockholder, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall party will be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed taken by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall will be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.22.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iie) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 2.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i2.08(d). No Person that is guilty of “fraudulent misrepresentation misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 2.08(e), Stockholder shall not be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds received by Stockholder with respect to the Registrable Securities exceed the greater of (A) the amount paid by Stockholder for its Registrable Securities and (B) the amount of any damages which Stockholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each Stockholder’s obligation to contribute pursuant to this Section 2.08 is several in proportion to the respective number of Registrable Securities held by such Stockholder hereunder and not joint.
6.5(f) For purposes of this Section 2.08, each controlling person of a Stockholder shall have the same rights to contribution as such Stockholder, and each officer, Director and Person, if any, who controls Parent within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as Parent, subject in each case to the limitations set forth in the immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 2.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from who contribution may be sought from any obligation it or they may have under this Section 2.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any action or claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld.
(g) If indemnification is available under this Section 62.08, the indemnifying parties shall party will indemnify each indemnified party to the full extent provided in this Section 6 Sections 2.08(a) and (b) without regard to the relative fault of such said indemnifying party or indemnified party or any other equitable consideration referred to provided for in Section 6.42.08(d) or (e).
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Stockholder Agreement (Great Atlantic & Pacific Tea Co Inc)
Indemnification; Contribution. If any Registrable ----------------------------- Securities are included in a registration statement under this Agreement:
6.17.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner and partner, employee, agent, representative and attorney of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and reasonable expenses of investigation, incurred by such party Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(iii) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 7.1 shall -------- ------- ----------- not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises solely out of or is solely based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity -------- ------- agreement contained in this Section 7 shall not apply to any underwriter to the --------- extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or (y) an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the failure of any person entitled to indemnification hereunder to deliver final prospectus shall correct such untrue statement or make available to a purchaser of Registrable Securities (to the extent required by law)alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling Holder confirmation of sale to such registration statement, including person if such preliminary prospectus or underwriter was under an obligation to deliver such final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.27.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, employee, agent, representative and employee attorney of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and reasonable expenses of investigation, incurred by such party 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, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, -------- however, that (x) the indemnification required by this Section 6.2 7.2 shall not ------- ----------- apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 7.2 exceed the gross proceeds from the applicable offering received by ----------- such Selling Holder.
6.37.3. Promptly after receipt by an indemnified party under this Section 6 7 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 67, such indemnified party shall deliver to --------- the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall -------- ------- have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, with the fees and disbursements and expenses unless 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 ------- 7 but shall not relieve the indemnifying party of any liability that it may have - to the extent of such prejudiceany indemnified party otherwise than pursuant to this Section 7. Notwithstanding the foregoing, Any fees --------- and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own 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 exist between such indemnified party and any other of such indemnified parties with respect to such action, claim or proceeding, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel and at its own expenseor counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.47.4. If the indemnification required by this Section 6 7 from --------- the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.7: ---------
Appears in 1 contract
Sources: Registration Rights Agreement (Firearms Training Systems Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To The Company shall, without limitation as to time, indemnify and hold harmless, to the full extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities ActStockholder, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, members, agents and employees and of each person of them, each Person who controls each such persons Person (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 Stockholder"), to the same fullest extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable lawlawful, each Selling Holder shall indemnify from and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities liabilities, actions or proceedings (whether commenced or threatened) reasonable costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (joint and several), including attorneys’ fees and disbursements and reasonable expenses of investigation) (collectively, incurred "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or 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 of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by the Company to such Stockholder expressly for use in such Registration Statement or prospectus and that such statement or omission was reasonably relied upon by such party pursuant Stockholder in preparation of such Registration Statement, prospectus or form of prospectus; provided, however, that the Company shall not be liable in any such case to the extent that the Company has furnished in writing to such Stockholder within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to such Stockholder, and such Stockholder failed to include such information therein; provided, further, however, that the Company shall not be liable to any actual Person who participates as an underwriter in the offering or threatened actionsale of Registrable Securities or any other Person, suitif any, proceeding or investigation, or to which any who controls such underwriter(s) within the meaning of the foregoing Persons may otherwise become subject under Securities Act to the Securities Act, the Exchange Act or other federal or state laws, insofar as extent that any such losses, claims, damages, liabilities and expenses Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Violation, in each case solely preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with or prior to the extent that such Violation occurs in reliance upon and in conformity with delivery of written information furnished confirmation of the sale by such Selling Holder or its Representatives or controlling persons expressly for use in connection with Person to the Person asserting the claim from which such registration; providedLosses arise, however, that (xB) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any prospectus would have corrected such loss, claim, damage, liability untrue statement or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned alleged untrue statement or delayedsuch omission or alleged omission, and (yC) the Company has complied with its obligations under Section 7(e)(iii). Each indemnity and reimbursement of costs and expenses shall remain in no event shall the amount full force and effect regardless of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received investigation made by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyIndemnified Stockholder.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Indemnification; Contribution. If any Registrable ----------------------------- Securities are included in a registration statement under this Agreement, including a Shelf Registration:
6.18.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner and partner, employee, agent and consultant of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(iii) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 8.1 shall -------- ------- ----------- not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, or (y) further, that the failure of indemnity -------- ------- agreement contained in this Section 8 shall not apply to any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (underwriter to the extent required by law)that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling Holder confirmation of sale to such registration statement, including person if such preliminary prospectus or underwriter was under an obligation to deliver such final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.28.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, and employee of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.-------- -------
Appears in 1 contract
Sources: Registration and Put Rights Agreement (Western Micro Technology Inc /De)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. 7.1 To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, its directors, officers, shareholders, employees, investment advisors, agents and Affiliates, either direct or indirect (each underwriter or Agent in any underwritten or agented offeringsuch Affiliate's directors, officers, shareholders, employees, investment advisors and agents) and each other Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, Act against any and all losses, claims, damages, liabilities and expenses (joint or several)expenses, including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”contained therein, or any amendments or supplements thereto, or the omission or alleged omission to state therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements thereintherein not misleading (collectively, in light of the circumstances under which they were made, not misleadinga "Violation"); provided, however, that the indemnification required by this Section 6.1 7.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. 7.2 To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, officers, shareholders, employees, investment advisors, agents and Affiliates, either direct or indirect (and each of its officers who shall have signed the registration statementsuch Affiliate's directors, officers, shareholders, employees, investment advisors and agents) and each Person other Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering other Selling Holder and each any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, Selling Holder against any and all losses, claims, damages, liabilities and expenses (joint and several)expenses, including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registrationregistration statement; provided, however, that (x) the indemnification required by this Section 6.2 7.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of or Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 7.2 and of the contribution obligation of a Selling Holder under Section 7.4 exceed the gross net proceeds from the applicable offering received by such Selling Holder, and (z) the obligation to provide indemnification hereunder shall be several, and not joint and several, among the indemnifying parties.
6.3. 7.3 Promptly after receipt by an indemnified party under this Section 6 7 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 67, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent materially prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 7 but shall not relieve the indemnifying party of any liability that it may have to the extent of such prejudiceany indemnified party otherwise than pursuant to this Section 7. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within thirty days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does shall have failed to promptly assume the defense of such action, claim or proceeding or (ii) 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 its counsel that there may be one or more legal defenses available to it which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereofof such action, claim or proceeding on behalf of such indemnified party; providedit being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 the indemnified party shall have been advised by its own counsel that a conflict of interest may exist between such indemnified party and at its own expenseany other of such indemnified parties with respect to such action, claim or proceeding such that the counsel could not represent the indemnified party and any other of such indemnified parties, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are ------------------------------ included in a registration statement under this Agreement:
6.1. (a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner partner, and employee, employee of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i1) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusas of the respective date thereof, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii2) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(3) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification -------- ------- required by this Section 6.1 6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable under this Section 6(a) in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration; provided, or (y) further, that the failure of indemnity agreement contained in this -------- ------- Section 6 shall not apply to any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (Holder to the extent required by law)that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of any registration statement, including any preliminary prospectus or the final prospectus contained therein has not been sent or any amendments given to such person at or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered prior to the applicable Selling confirmation of sale to such person if such Holder was under an obligation to deliver such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements theretofailed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals any underwriters participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of a Piggyback Registration in which the Selling HoldersHolders are participating.
6.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, and other Selling Holder; each officer, director, partner partner, and employee of such underwriter or Agent or other Selling Holder and such controlling PersonPerson and each underwriter to the extent that such Selling Holder participates in an underwritten registration, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, -------- however, that (x) the indemnification required by this Section 6.2 6(b) shall not ------- apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 6(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall -------- ------- have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party)at its own expense except as provided below. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 but shall not relieve the indemnifying party of any liability that it may have to the extent of such prejudice. Notwithstanding the foregoing, the any indemnified party will otherwise than pursuant to this Section 6. Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does has agreed to pay such fees and expenses or (ii) the 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 it has reasonably determined that there may be one or more legal defenses available to it which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not elect 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 control of the defense within thirty (30) days after receiving notice thereof; providedof such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own counsel and appropriate local counsel) at its own expenseany time for all such indemnified parties. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, party which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. (d) If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 6(a) and Section 6.26(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 6(d) were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i6(d)(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. (e) If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.46(d); provided, however, that if it is determined by a final and non-appealable order of a court of competent jurisdiction that a party receiving indemnification hereunder was not entitled to receive such indemnification, the additional cost, if any, to the indemnifying party of such indemnification shall be promptly reimbursed by such improperly indemnified party to such indemnifying party.
6.6. (f) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Indemnification; Contribution. If (a) In the event of any Registrable registration of any equity securities of the Corporation under the Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by Act or applicable lawCanadian securities Laws, the Company shall Corporation will, and hereby does agree to, indemnify and hold harmless each Selling Holderharmless, in the case of any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, the seller of any Registrable Shares covered by such registration statement or prospectus, its respective directors and officers, partners and members, each other Person who participates as an underwriter in the offering or Agent in any underwritten or agented offeringsale of such securities, and each other Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus seller or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several)expenses, including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of the foregoing Persons them may otherwise become subject under the Securities Act, the Exchange Act applicable Canadian securities Laws or other federal or state lawsotherwise, insofar as such losses, claims, damages, liabilities and or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any Violationuntrue statement or alleged untrue statement of any material fact contained in any registration statement or prospectus under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus included therein or filed with applicable Canadian securities regulatory authorities, or any amendment or supplement thereto, or any document incorporated by reference therein, 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 not misleading; provided, however, that the Corporation shall not be liable in each any such case solely to the extent that any such Violation occurs loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon (x) an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Corporation for use in the preparation thereof by such seller or underwriter, as the case may be, or (y) an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus but notified to such seller and underwriter prior to any sale or other disposition of Registrable Shares and subsequently corrected by the Corporation in any final prospectus, amendment or supplement made available to such seller or underwriter but which final prospectus, amendment or supplement was not used by such seller or underwriter in the sale or other disposition of Registrable Shares that gave rise to such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense. This indemnity shall be in addition to any liability the Corporation may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or any such director or officer, underwriter or controlling Person and shall survive the transfer of such securities by such seller.
(b) The Corporation may require, as a condition to including any Registrable Shares in any registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, that the Corporation shall have received an agreement satisfactory to it from (i) the prospective seller of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 9(a), except that any such prospective seller shall not in any event be liable to the Corporation pursuant thereto for an amount in excess of the net proceeds of the sale of such prospective seller's Registrable Shares so to be sold) the Corporation, each director of the Corporation and each of the Corporation's officers who signed the registration statement or prospectus, each such underwriter of such securities, and each other Person, if any, who controls the Corporation or any such underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and (ii) each such underwriter of such securities, to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 9(a) above) the Corporation, each officer who signed the registration statement or prospectus and each director of the Corporation, each prospective seller, and each other Person, if any, who controls the Corporation or any such prospective seller within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, with respect to any untrue statement in or omission from such registration statement, any preliminary prospectus, final prospectus, or any amendment or supplement thereto, if such untrue statement or omission was made in reliance upon and in conformity with written information furnished by such Selling Holder prospective seller or its Representatives or controlling persons expressly such underwriter, as the case may be, to the Corporation for use in connection with the preparation of such registration; providedregistration statement, howeverpreliminary prospectus, that (x) the indemnification required by this Section 6.2 final prospectus, amendment or supplement. Such indemnity shall not apply to amounts paid remain in settlement full force and effect regardless of any such loss, claim, damage, liability investigation made by or expense if settlement is effected without the consent on behalf of the relevant Selling Holder Corporation or any such director, officer or controlling Person and shall survive the transfer of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received such securities by such Selling Holderseller.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, suit, proceeding, investigation action or threat thereof made in writing for which such indemnified party may make proceeding (including any governmental investigation) involving a claim under this referred to in either Section 69(a) above or (b) above, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided, however, that the failure of any indemnified party to give notice as provided herein shall deliver to not relieve the indemnifying party a written notice of its obligations under the commencement thereof and preceding provisions of this Section 9, except to the extent that the indemnifying party is materially prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, the indemnifying party shall have be entitled to assume the right to participate in, and, to the extent the indemnifying party so desiresdefense thereof, jointly with any other indemnifying party similarly given noticenotified, to the extent that it may wish, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof with counsel reasonably satisfactory thereof, the indemnifying party will not be liable to the parties; provided, however, that an such indemnified party shall have for any legal or other expenses subsequently incurred by the right to retain separate counsel indemnified party in any such action, claim or proceeding and to participate in connection with the defense thereof. If, providedin the indemnified party's reasonable judgment, that a conflict of interest between such indemnified party and indemnifying parties may exist in respect of such claim, the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted entitled to participate in the defense thereof with its own counsel and at its own expense. No the indemnifying party shall not be liable to an indemnified party for the fees and expenses of more than one counsel for all sellers of Registrable Shares, or more than one counsel for the underwriters in connection with any settlement of any action, proceeding one action or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned separate but similar or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyrelated actions.
6.4. (d) If the indemnification required by provided for in the foregoing clauses (a), (b) and (c) of this Section 6 from the indemnifying party 9 is unavailable to an the indemnified party hereunder parties in respect of any losses, claims, damages, damages or liabilities or expenses referred to in this Section 6:
(i) The therein, then each indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount amounts paid or payable by such indemnified party parties as a result of such losses, claims, damagesdamages or liabilities (i) as between the Corporation and the holders of Registrable Shares covered by a registration statement, liabilities on the one hand, and the underwriters, on the other, in such proportion as is appropriate to reflect the relative benefits received by the Corporation and such holders, on the one hand, and the underwriters, on the other, from the offering of the Registrable Shares, or expenses if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits but also the relative fault of the Corporation and such holders, on the one hand, and of the underwriters, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations, and (ii) as between the Corporation, on the one hand, and each holder of Registrable Shares covered by a registration statement or prospectus, on the other, in such proportion as is appropriate to reflect the relative fault of the indemnifying party Corporation and indemnified parties of each such holder in connection with the actions that resulted in such losses, claims, damages, liabilities statements or expensesomissions, as well as any other relevant equitable considerations. The relative benefits received by the Corporation and such holders, on the one hand, and the underwriters, on the other, shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Corporation and such holders bear to the total underwriting discounts and commissions received by the underwriters. The relative fault of the Corporation and such indemnifying party holders, on the one hand, and indemnified parties of the underwriters, on the other, shall be determined by reference to, among other things, whether any Violation has been committed by, 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 byby the Corporation and such holders or by the underwriters. The relative fault of the Corporation, on the one hand, and of each such indemnifying party holder, on the other, shall be determined by reference to, among other things, whether the untrue or indemnified partiesalleged untrue statement of a material fact relates to information supplied by such party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid statement or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceedingomission.
(iie) The parties hereto Corporation and the holders of Registrable Shares agree that it would not be just and equitable if contribution pursuant to this Section 6.4 9(d) were determined by pro rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account of the equitable considerations referred to in the next preceding paragraph. Notwithstanding the provisions of Section 6.4(i9(d), no holder of Registrable Shares shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Shares of such holder were offered to the public exceeds the amount of any damages that such holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under The obligation of the holders of Registrable Shares to contribute pursuant to this Section 6, 9 is several in the indemnifying parties shall indemnify each indemnified party proportion that the proceeds of the offering received by such holder bears to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations total proceeds of the Company offering received by all Holders and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsnot joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Fairfax Financial Holdings LTD/ Can)
Indemnification; Contribution. If any Registrable Securities Restricted Shares are included in a registration statement under this Agreement:
6.1. (a) To the extent permitted by applicable law, the Company BermudaCo and LuxCo shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner Partner, principal and employee, employee of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(iii) Any violation or alleged violation by BermudaCo or LuxCo of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 4.06(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company BermudaCo or LuxCo (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company BermudaCo or LuxCo be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company BermudaCo or LuxCo by the indemnified party expressly for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein Registration. BermudaCo and any amendments or supplements thereto. The Company LuxCo shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees underwriters and each person who controls such persons 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 Selling Holders; provided, however, that the indemnity agreement contained in this Section 4.06 shall not apply to any underwriter or person who controls any underwriter to the extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so.
6.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Companyeach of BermudaCo and LuxCo, each of its their respective directors, each of its their respective officers who shall have signed the registration statement, each Person Person, if any, who controls the Company BermudaCo or LuxCo within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner Partner, principal and employee of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ ' fees and disbursements and expenses of investigation, incurred by such underwriters party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registrationRegistration; provided, however, that (x) the indemnification required by this Section 6.2 4.06(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable SecuritiesBermudaCo Shares in respect of Restricted Shares, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 4.06(b) exceed the gross net proceeds from the applicable offering received by such Selling Holder. The Selling Holders shall also indemnify underwriters and each person who controls such underwriters (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of BermudaCo and LuxCo; provided, however, that the indemnity agreement contained in this Section 4.06 shall not apply to any underwriter or person who controls any underwriter to the extent that any such loss is based on or arises out of an untrue statement or alleged untrue statement of a material fact, or an omission or alleged omission to state a material fact, contained in or omitted from any preliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 4.06 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 64.06, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent materially prejudicial to the indemnifying partyits ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 4.06 to the extent of such material prejudice, but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 4.06. Notwithstanding the foregoing, Any reasonable fees and expenses incurred by the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the including any fees and disbursements and expenses incurred in connection with investigating or preparing to defend such action or proceeding) for which the indemnifying party is liable pursuant to this Section 4.6 shall be paid by to the indemnified party, as incurred, within thirty (30) days of written notice thereof to the indemnifying party) . Any such indemnified party shall have the defense, compromise and settlement of right to employ separate counsel in any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted and to participate in the defense thereof with its own thereof, but the fees and expenses of such counsel shall be borne by such indemnified party unless (i) the indemnifying party has agreed to pay such fees and at its own expense. No expenses or (ii) the indemnifying party shall be liable have failed to an indemnified party for any settlement of any action, proceeding or claim without promptly assume the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect defense of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Shareholders Agreement (Monday LTD)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1(a) Indemnification by the Company. To the extent permitted by applicable law, the The Company shall agrees to indemnify --------------------------------- and hold harmless each Selling HolderHolder of Registrable Securities, its officers, directors, shareholders, partners, trustees, beneficiaries and agents, and each underwriter person or Agent in any underwritten or agented offering, each Personentity, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify from and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses reasonable costs of investigation, incurred by such party pursuant ) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus relating to the Registrable Securities or in any actual amendment or threatened action, suit, proceeding supplement thereto or investigationin any preliminary prospectus, or arising out of or based upon any omission or alleged omission to which any of state therein a material fact required to be stated therein or necessary to make the foregoing Persons may otherwise become subject under the Securities Actstatements therein not misleading, the Exchange Act or other federal or state laws, except insofar as such losses, claims, damages, liabilities and liabilities, or expenses arise out of of, or are based upon, any such untrue statement or omission or allegation thereof based upon information furnished in writing to the Company by such Holder or on such Holder's behalf expressly for use therein; provided, that with respect to any Violationuntrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus, the indemnity agreement contained in each case solely this subsection shall not apply to the extent that any such Violation occurs in reliance upon loss, claim, damage, liability, or expense results from the fact that a current copy of the prospectus was not sent or given to the person asserting any such loss, claim, damage, liability, or expense at or prior to the written confirmation of the sale of the Registrable Securities to such person and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) current copy of the indemnification required by this Section 6.2 shall not apply prospectus would have cured the defect giving rise to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent expense. The Company also agrees to indemnify any Underwriters of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayedtheir officers and directors, and (y) in no event shall each person who controls such Underwriters on substantially the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 of notice same basis as that 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 6, such indemnified party shall deliver to the indemnifying party a written notice indemnification of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent Holders provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.46(a).
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Registration Rights Agreement (Safeguard Health Enterprises Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the (a) The Company shall indemnify and hold harmless each Selling Holderharmless, to the fullest extent permitted by law, each underwriter or Agent Stockholder in any underwritten offering or agented offeringsale of Registrable Common Shares pursuant to this Agreement, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Common Shares, and each Person, if any, who controls such Selling Holder, Stockholder or such underwriter or Agent within the meaning of Section 15 of the Securities ActAct or Section 20 of the Exchange Act and their respective directors, trustees, officers, partners, agents, employees and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, affiliates against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ fees and fees, disbursements and expenses of investigationexpenses, as incurred, and any amounts paid in any settlement effected 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, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise investigation arising out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
upon: (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement in, or prospectusany omission or alleged omission of a material fact required to be stated in, including the Registration Statement, Prospectus or preliminary Prospectus or any preliminary prospectus amendment or final prospectus supplement to any of the foregoing, any Issuer Free Writing Prospectus or any “issuer free writing prospectusinformation” as such term is defined in filed or required to be filed pursuant to Rule 433 433(d) under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements thereintherein (in the case of a Prospectus, a preliminary Prospectus, an Issuer Free Writing Prospectus or “issuer information,” in the light of the circumstances under which they were made, then existing) not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid except in settlement of any each case insofar as such loss, claim, damage, liability statements or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises omissions arise out of or is are based upon (xA) a Violation which occurs any such untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon on and in conformity with written information with respect to such Stockholder furnished in writing to the Company by the indemnified party such Stockholder or its counsel expressly for use therein, (B) the use of any Prospectus, Issuer Free Writing Prospectus or “issuer information” 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, Issuer Free Writing Prospectus or “issuer information” after such time as the Company has advised the Stockholders that the filing of an amendment or supplement thereto is required, except such Prospectus, Issuer Free Writing Prospectus or “issuer information” 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, or (y) . Notwithstanding the failure foregoing provisions of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by lawthis Section 12(a), the Company shall not be liable to any such Stockholder 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 Stockholder 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 Stockholder 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 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 Stockholder 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 Stockholder or underwriter to the Person asserting the claim from which such Losses 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 statementRegistration Statement filed pursuant to this Agreement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law each Stockholder holding Registrable Common Shares to be delivered or made available)covered thereby shall, providedseverally and not jointly with any other Stockholders, that indemnify and hold harmless, to the fullest extent permitted by law, the Company, each Person, if any, who participates as an underwriter in any such offering and sale of Registrable Common Shares and each Person, if any, who controls the Company shall have timely delivered to the applicable Selling Holder or such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its their respective directors, each of its officers who shall have signed the registration statementtrustees, each Person who controls the Company within the meaning of the Securities Actofficers, each underwriter or Agent in any underwritten or agented offering partners, agents, employees and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Personaffiliates, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, Losses incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigationinvestigation 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 which be stated in, the Registration Statement, Prospectus or preliminary Prospectus or any amendment or supplement to any of the foregoing Persons may otherwise become subject foregoing, any Issuer Free Writing Prospectus or “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or necessary to make the Exchange Act statements therein (in case of a Prospectus, preliminary Prospectus or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any ViolationIssuer Free Writing Prospectus, in each case solely the light of the circumstances then existing) not misleading, but only to the extent that any such Violation occurs untrue statement or omission is made in reliance upon on and in conformity with written information with respect to such Stockholder furnished in writing to the Company by such Selling Holder Stockholder or its Representatives or controlling persons expressly counsel specifically for use in connection with such registrationtherein; provided, however, that (x) no Stockholder shall be required to indemnify the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of Company or any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an other indemnified party under this Section 6 12(b) with respect to any amount in excess of the amount of the total net proceeds received by such Stockholder from sales of the Registrable Common Shares of such Stockholder under 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, proceeding or investigation or threat thereof made in writing for which such indemnified party may make a claim under indemnification or contribution pursuant to this Section 6Agreement, provided that failure to give such indemnified party notification shall deliver to not affect the obligations of the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right pursuant to participate in, and, this Section 12 except to the extent the indemnifying party so desiresshall 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 given noticenotified, to assume the defense thereof thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the parties; provided, however, that an indemnifying party to such indemnified party shall have the right of its election so to retain separate counsel in any such action, claim or proceeding and to participate in assume the defense thereof, provided, that the indemnified indemnifying party shall not be responsible for its own fees and disbursements and expenses unless representation of 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 counsel retained by 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 would be inappropriate due to actual or potential differing interests between and such indemnified party and any other party represented by of such counsel in indemnified parties with respect to such proceeding (claim, in which case event the indemnifying party shall pay such not be liable for the fees and disbursements and expenses of (i) more than one counsel for all Stockholders holding Registrable Common Shares who are indemnified parties, selected by the Stockholders holding a Majority of the Registrable Common Shares held by all Stockholders 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 and shall who is not have the right to 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 actionindemnifying party with respect to such claim, claim or proceeding unless in the reasonable judgment of any indemnified party, based on behalf the opinion of counsel, a conflict of interest is likely to exist between an indemnified party and any other of such indemnified party). The failure parties with respect to deliver written notice to such claim, in which event the indemnifying party within 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 Stockholders holding Registrable Common Shares who are indemnified parties, selected by the Stockholders holding a reasonable time following Majority of the commencement 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 (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, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any actionsuit, proceeding or claim without investigation, shall, except with the written consent of the indemnifying each indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to the entry of any judgment or entry into any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of an unconditional a release from all liability in respect of to such action, suit, proceeding or claim 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 that requires an admission entry into any settlement without the consent of wrongdoing by any indemnified each indemnifying party.
6.4. (d) If the indemnification required by this Section 6 from the indemnifying party provided for in this Section 12 is unavailable to an indemnified party hereunder in respect of any lossesLosses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions that which resulted in such losses, claims, damages, liabilities or expensesLosses, as well as any other relevant equitable considerations; provided, however, that no Stockholder shall be required to contribute any amount in excess of the amount of the total net proceeds received by such Stockholder from sales of the Registrable Common Shares of the Stockholder under the applicable Registration Statement. The relative fault of such indemnifying party and indemnified parties party shall be determined by reference to, among other things, whether any Violation action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed made by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses Losses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.212(c), any legal or other fees or and expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. The parties agree that it would not be just and equitable if contribution pursuant to this Section 12(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the consideration referred to in this Section 12(d). If indemnification is available under this Section 612, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 12(a) or 12(b), as the case may be, without regard to the relative fault of such indemnifying party parties or indemnified party or any other equitable consideration referred to provided for in this Section 6.412(d).
6.6. (e) The obligations provisions of the Company and the Selling Holders of Registrable Securities under this Section 6 12 shall be in addition to any liability which any indemnifying party may have to any indemnified party and shall survive the completion termination of this Agreement.
(f) The indemnification and contribution required by this Section 12 shall be made by periodic payments of the amount thereof during the course of any offering of Registrable Securities pursuant to a registration statement under this Agreementaction, suit, proceeding or investigation, as and otherwise until the expiration of the applicable statute of limitationswhen invoices are received or Losses are incurred.
Appears in 1 contract
Sources: Registration Rights Agreement (PAETEC Holding Corp.)
Indemnification; Contribution. If (a) Incident to any registration of any Registrable Securities are included in a registration statement under the Securities Act pursuant to this Agreement:
6.1. To the extent permitted by applicable law, the Company shall will indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, PSC from and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, reasonable expenses and liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of any reasonable investigation, legal and other expenses incurred by such party pursuant to in connection with, and any actual or threatened amount paid in settlement of, any action, suit, suit or proceeding or investigationany claim asserted, or as the same are incurred) to which any of the foregoing Persons it may become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
on (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, (including any related preliminary prospectus or final prospectus or any “issuer free writing definitive prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments amendment or supplements thereto; or
supplement to such registration statement or prospectus) or (ii) the any omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, document a material fact required or allegedly required to be stated therein, in it or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, it not misleading; provided, however, that the indemnification required by this Section 6.1 shall Company will not apply be liable to amounts paid in settlement of any the extent that (1) such loss, claim, damage, expense or liability arises from and is based on an untrue statement or expense if 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 PSC in accordance with Section 4(b) of this Agreement for use in such settlement is effected without registration statement, or (2) in the consent case of a sale directly by PSC, such untrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus, and PSC failed to deliver a copy of the Company (which consent shall not be unreasonably withheld, conditioned final or delayed), nor shall amended prospectus at or prior to the Company be liable in any such case for confirmation of the sale of the Registrable Securities to the Person asserting any such loss, claim, damage, liability, damage or expense solely liability in any case where such delivery is required by the Securities Act or any state securities laws. With respect to such untrue statement or omission or alleged untrue statement or omission in the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished in writing to the Company by the indemnified party or on behalf of PSC in accordance with Section 4(b) of this Agreement for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall PSC will indemnify and hold harmless the Company, each of Company (including its directors, each of its officers who shall have signed the registration statementofficers, each Person who controls the Company within the meaning of the Securities Actemployees, each underwriter or Agent in any underwritten or agented offering representatives and each Person who controls such underwriter or Agent within the meaning of the Securities Act, agents) from and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, reasonable expenses and liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of any reasonable investigation, legal and other expenses incurred by such party pursuant to in connection with, and any actual or threatened amount paid in settlement of, any action, suit, suit or proceeding or investigationany claim asserted, as the same are incurred) to which they, or to which any of the foregoing Persons them, may otherwise become subject under the Securities Act, the Exchange Act or other federal or state lawsstatutory law or regulation, insofar as such losses, claims, damages, liabilities and expenses arise out of at common law or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registrationotherwise; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount aggregate amounts payable by PSC by way of any indemnity or contribution under this Section 6.2 Sections 5(a) and 5(b) exceed the gross proceeds from the applicable offering received by such Selling HolderPSC (net of any selling expenses paid by PSC), except in the case of fraud or willful misconduct by PSC.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying partyb) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required provided for in Section 5(a) above for any reason is held by this Section 6 from the indemnifying party is a court of competent jurisdiction to be unavailable to an indemnified party hereunder Party in respect of any losses, claims, damages, expenses or liabilities or expenses referred to in therein, then each indemnifying Party under this Section 6:
(i) The indemnifying party5, in lieu of indemnifying such indemnified partyParty thereunder, shall contribute to the amount paid or payable by such indemnified party Party as a result of such losses, claims, damages, expenses or liabilities or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and PSC from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party Company and indemnified parties PSC in connection with the actions that statements or omissions which resulted in such losses, claims, damages, liabilities expenses or expensesliabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and PSC shall be deemed to be in the same respective proportions that the net proceeds from the offering received by the Company and PSC, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of such indemnifying party the Company and indemnified parties PSC shall be determined by reference to, among other things, whether any Violation has been committed by, 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, such indemnifying party by or indemnified parties, on behalf of the Company or PSC and the partiesParties’ relative intent, knowledge, knowledge and access to information and opportunity to correct or prevent such Violationinformation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities Company and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto PSC agree that it would not be just and equitable if contribution pursuant to this Section 6.4 5(b) were determined by pro rata or per capita allocation or by any other method of allocation that which does not take into account of the equitable considerations referred to in Section 6.4(i)the immediately preceding paragraph. No Person that is 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.
6.5(c) 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 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. If The indemnification is available and contribution provided for in this Section 5 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Party or any officer, director, employee, agent or controlling Person of the indemnified Party. No indemnifying Party, in the defense of 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. Any indemnified Party that proposes to assert the right to be indemnified under this Section 65 will, promptly after receipt of notice of commencement or threat of any claim or action against such Party in respect of which a claim is to be made against an indemnifying Party under this Section 5 notify the indemnifying Party in writing (such written notice, an “Indemnification Notice”) of the commencement or threat of such action, enclosing a copy of all papers served or notices received (if applicable), but the omission to so notify the indemnifying Party will not relieve the indemnifying Party from any liability that the indemnifying Party may have to any indemnified Party under the foregoing provisions of this Section 5 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying Party. The indemnified Party will have the right to retain its own counsel in any such action if (i) the employment of counsel by the indemnified Party has been authorized by the indemnifying Party, (ii) the indemnified Party’s counsel, with the concurrence of indemnifying Party’s counsel, shall have reasonably concluded that there is a substantial likelihood of a conflict of interest between the indemnifying Party and the indemnified Party in the conduct of the defense of such action or (iii) the indemnifying Party shall not in fact have employed counsel to assume the defense of such action within a reasonable period of time following its receipt of the Indemnification Notice, in each of which cases the fees and expenses of the indemnified Party’s separate counsel shall be at the expense of the indemnifying Party; provided, however, that the indemnified Party shall agree to repay any expenses so advanced hereunder if it is ultimately determined by a court of competent jurisdiction that the indemnified Party to whom such expenses are advanced is not entitled to be indemnified; and provided, further, that so long as the indemnified Party has reasonably concluded that no conflict of interest exists, the indemnifying parties shall indemnify each indemnified party Party may assume the defense of any action hereunder with counsel reasonably satisfactory to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4Party.
6.6. (d) The obligations obligation of the Company and the Selling Holders of Registrable Securities PSC under this Section 6 5 shall survive the completion of any offering of Registrable Securities pursuant to in a registration statement under this AgreementSection 2, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emergent BioSolutions Inc.)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. (a) To the extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent Holder within the meaning of the Securities Act, and each officer, director, partner partner, and employee, employee of such Selling Holder, underwriter, Agent Holder and such controlling PersonsPerson, against any and all losses, claims, damages, liabilities and expenses (joint or several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or any other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, collectively a “"Violation”"):
(i) any Any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectusstatement, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Actcontained therein, or any amendments or supplements thereto; or;
(ii) the The omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, or necessary or allegedly necessary to make the statements therein, in light therein not misleading; or
(iii) Any violation or alleged violation by the Company of the circumstances Securities Act, the Exchange Act, any applicable state securities law or any rule or regulation promulgated under which they were madethe Securities Act, not misleadingthe Exchange Act or any applicable state securities law; provided, however, that the indemnification required by this Section 6.1 4(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, liability or expense solely to the extent (and only to the extent) that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. (b) To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person Person, if any, who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each other Selling Holder, any controlling Person who controls of any such underwriter or Agent within the meaning of the Securities Act, other Selling Holder and each officer, director, partner partner, and employee of such underwriter or Agent or other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including reasonable attorneys’ ' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or any other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; providedPROVIDED, howeverHOWEVER, that (x) the indemnification required by this Section 6.2 4(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, (which consent shall not be unreasonably withheld); and, conditioned or delayed, and (y) PROVIDED FURTHER that in no event shall the amount of any indemnity under this Section 6.2 4(b) exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 4 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 64, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given noticenoticed, to assume the defense thereof with counsel reasonably satisfactory to the partiesindemnified party; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding at its own expense (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified partyexcept as specifically provided below). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 6 4 except, if and to the extent that the indemnifying party is actually prejudiced thereby, but in no event shall it relieve the indemnifying party of such prejudiceany liability that it may have to any indemnified party otherwise than pursuant to this Section 4. Notwithstanding the foregoing, Any fees and expenses incurred by the indemnified party will (including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred, within sixty (60) days of written notice thereof to the indemnifying party (regardless of whether it is ultimately determined that an indemnified party is not entitled to indemnification hereunder, but in such event such amounts shall be immediately refunded). Any such indemnified party shall have the absolute right to conduct and control, through employ separate counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of in any such action, claim or proceeding if and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party does not elect has agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to promptly assume control of the defense within thirty of such action, claim or proceeding or (30iii) days after receiving notice thereof; providedthe 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 which are different from or in addition to those available to the indemnifying party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party could not faithfully represent the indemnified party, it being understood, however, that the indemnifying party shall be permitted to participate not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the defense thereof 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 its own counsel and appropriate local counsel) at its own expenseany time for all such indemnified parties. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. (d) If the indemnification required by this Section 6 4 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 64:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses (x) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party or parties on the other or (y) if the allocation provided by clause (x) is not permitted by applicable law , in such proportion as to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party or parties on the other, but also the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 4(a) and Section 6.2(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 4(d) were determined by pro rata allocation or by any other method of allocation that which does not take into account the equitable considerations referred to in Section 6.4(i4(d)(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. (e) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 4 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Startec Global Communications Corp)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To (a) The Trust hereby indemnifies, to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent Holder of Registrable Securities included in any underwritten or agented offeringregistration statement filed by the Trust and the directors, officers, partners, employees, agents and each Person, if any, Person who controls such Selling Holder, underwriter or Agent any Holder within the meaning of the Securities Act and the Exchange Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Personsif any, against any and all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act common law and otherwise), joint or other federal or state lawsseveral, insofar as such losses, claims, damages, liabilities and expenses which arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in any such registration statement or in any prospectus, including preliminary prospectus, any preliminary prospectus amendment or final prospectus supplement thereto or any “issuer free writing prospectus” as such term is defined document incorporated by reference relating thereto or in Rule 433 any filing made in connection with the registration or qualification of the offering under "blue sky" or other securities laws of jurisdictions in which the Registrable Securities Actare offered, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that and the indemnification required Trust shall reimburse such Holders for any legal or other expenses reasonably incurred by this Section 6.1 shall not apply to amounts paid them in settlement of connection with investigating or defending any such loss, claim, damage, liability or expense proceeding, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, if used prior to the effective date of such settlement registration statement (unless such statement is effected without corrected in the consent final prospectus and the Trust has previously furnished copies thereof to any holder of Registrable Securities seeking such indemnification and to the underwriters of the Company registration in question), or contained in the final prospectus (as amended or supplemented if the Trust shall have filed with the Commission any amendment thereof or supplement thereto) if used within the period during which consent the Trust is required to keep the registration statement to which such prospectus relates current, or the omission or alleged omission to state therein a material fact necessary in order to make the statements therein in light of the circumstances under which they were made, not misleading; provided, however, that such indemnification shall not be unreasonably withheldextend to any such losses, conditioned claims, damages, liabilities (or delayed)proceedings in respect thereof) or expenses that are caused by any untrue statement or alleged untrue statement contained in, nor shall or by any omission or alleged omission from, information furnished in writing to the Company be liable Trust by such Holder in such capacity specifically and expressly for use in any such registration statement or prospectus.
(b) In the case for any such lossof an underwritten offering pursuant to Section 3 hereof in which the registration statement covers Registrable Securities, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs Trust shall enter into an underwriting agreement in reliance upon customary form and in conformity with written information furnished to the Company by the indemnified party for use in connection substance with such registrationunderwriters and, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law)if so requested, a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if contribution agreement in customary form and substance with such underwriters and shall indemnify the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers their officers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees if any, and each person person, if any, who controls such persons (underwriters within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act) , to the same extent as provided above in the preceding paragraph with respect to the indemnification of the Selling Holders.
6.2. To Holders of Registrable Securities and to the same extent permitted by applicable lawas then customary in underwriting agreements of such underwriter; provided, each Selling Holder however, that the Trust shall not be required to indemnify and hold harmless the Companyany such underwriter, each or any officer or director of its directors, each of its officers who shall have signed the registration statement, each Person such underwriter or any person who controls the Company such underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is sought results from such underwriter's failure to deliver or otherwise provide a copy of the final prospectus to the Person asserting an untrue statement or omission or alleged untrue statement or omission at or prior to the written confirmation of the sale of securities to such Person, if such statement or omission was in fact corrected in such final prospectus.
(c) In connection with any registration statement with respect to which a Holder of Registrable Securities is participating, each underwriter or Agent such Holder shall furnish to the Trust in writing such information regarding such Holder included in a registration statement and the intended method of distribution as shall be reasonably requested by the Trust for use in any underwritten such registration statement or agented offering prospectus and each Person of the Holders hereby indemnifies, severally but not jointly, to the fullest extent permitted by law, the Trust, its officers and directors and each person, if any, who controls such underwriter or Agent the Trust within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (joint and several), including attorneys’ fees and disbursements and expenses resulting from any untrue statement or alleged untrue statement of investigation, incurred by such party pursuant a material fact or any omission or alleged omission of a material fact required to any actual be stated or threatened action, suit, proceeding necessary to make the statements in the registration statement or investigationprospectus, or to which any of the foregoing Persons may otherwise become subject under the Securities Actamendment thereof or supplement thereto, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registrationnot misleading; provided, however, that (x) each of the indemnification required by this Section 6.2 Holders shall not apply be liable hereunder if and only to amounts paid in settlement of the extent that any such loss, claim, damage, liability (or proceeding in respect thereof) or expense if settlement arises out of or is effected without based upon an untrue statement, or alleged untrue statement or omission or alleged omission, made in reliance upon and in conformity with information pertaining to such Holder which is requested by the consent Trust and furnished in writing to the Trust by such Holder specifically and expressly for use in any such registration statement or prospectus.
(d) Any Person seeking indemnification under the provisions of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly 8 shall, promptly after receipt by an indemnified party under this Section 6 such Person of notice of the commencement of any action, suit, claim or proceeding, investigation or threat thereof made notify each party against whom indemnification is to be sought in writing for of the commencement thereof; provided, however, that the failure so to notify an indemnifying party shall not relieve the indemnifying party from any liability which such indemnified party it or he may make a claim have under this Section 6, 8 (except to the extent that it has been prejudiced in any material respect by such indemnified party shall deliver to failure) or from any liability which the indemnifying party a written notice may otherwise have. In case any such action, suit, claim or proceeding is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof and thereof, the indemnifying party shall have the right be entitled to participate in, therein and, to the extent it or he may elect by written notice delivered to the indemnifying indemnified party so desires, jointly with any other indemnifying party similarly given noticepromptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will shall have the absolute right to conduct and controlemploy its or his own counsel in any such case, through counsel of its choosing (with but the fees and disbursements expenses of such counsel shall be at the expense of such indemnified party unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such suit, action, claim or proceeding, (ii) the indemnifying party shall not have employed counsel (reasonably satisfactory to the indemnified party) to take charge of the defense of such action, suit, claim or proceeding within a reasonable time after notice of commencement of the action, suit, claim or proceeding, or (iii) such indemnified party shall have reasonably concluded, based on the advice of counsel, that there may be defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and the indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party. If any of the events specified in clauses (ii) or (iii) of the preceding sentence shall have occurred or shall otherwise be applicable, then the fees and expenses to of one counsel or firm of counsel selected by a majority in interest of the indemnified parties shall be paid borne by the indemnifying party) . If, in any case, the defenseindemnified party employs separate counsel, compromise and settlement the indemnifying party shall not have the right to direct the defense of any such action, suit, claim or proceeding if the indemnifying party does not elect to assume control on behalf of the defense within thirty (30) days after receiving notice thereof; providedindemnified party. Anything in this paragraph to the contrary notwithstanding, that the an indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall not be liable to an indemnified party for any the settlement of any action, suit, claim or proceeding or claim effected without the its prior written consent of the indemnifying party, (which consent in the case of an action, suit, claim or proceeding exclusively seeking monetary relief shall not be unreasonably withheld, conditioned withheld or delayed). No indemnifying party Such indemnification shall consent to any settlement remain in full force and effect irrespective of any action, proceeding investigation made by or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party on behalf of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. (e) If the indemnification required by this Section 6 from the indemnifying party as provided in this Section 8 is unavailable or is otherwise insufficient to hold harmless an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The therein, then the indemnifying party, in lieu of indemnifying such indemnified party, party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation action in question, including any untrue (or alleged untrue) statement of a material fact or omission (or alleged omission) to state a material fact, has been committed bymade, or relates to information supplied by, by such indemnifying party or such indemnified partiesparty, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.28(e) hereof, any legal or other fees or expenses reasonably incurred by such party in connection with any such investigation or proceeding.
(ii) . The parties hereto agree acknowledge that it would not be just and equitable if contribution pursuant to this Section 6.4 8 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i)other than as described above. No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If If, however, indemnification is available under this Section 68, the indemnifying parties shall indemnify each indemnified party to the full fullest extent provided in this Section 6 Sections 8(a) through 8(e) hereof without regard to the relative fault of such said indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4consideration.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Registration Rights Agreement (Pennsylvania Real Estate Investment Trust)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To (a) The Company shall indemnify, to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderApplicable Law, each underwriter or Agent in any underwritten or agented offeringholder of Registrable Securities, its officers, directors, partners, employees and agents, if any, and each Person, if any, who controls such Selling Holder, underwriter or Agent holder within the meaning of Section 15 of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (under the Securities Act or common law or otherwise), joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred resulting from any violation by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any the Company of the foregoing Persons may become subject under provisions of the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such any registration statement or prospectus, including prospectus (and as amended or supplemented if amended or supplemented) or any preliminary prospectus or final prospectus or caused by any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of any prospectus, in light of the circumstances under which they were made, ) not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely except to the extent that it arises out such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses are caused by any untrue statement or alleged untrue statement contained in or by any omission or alleged omission from information concerning any holder of or is based upon (x) a Violation which occurs Registrable Securities furnished in reliance upon and in conformity with written information furnished writing to the Company by the indemnified party such holder expressly for use in connection with therein. If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, no action or failure to act on the part of such registration, underwriters (whether or (y) the failure not such underwriter is an Affiliate of any person entitled holder of Registrable Securities) shall affect the obligations of the Company to indemnification hereunder to deliver or make available to a purchaser indemnify any holder of Registrable Securities (or any other Person pursuant to the extent required by law), a copy of preceding sentence. If the Public Offering pursuant to any registration statementstatement provided for under this Article III is made through underwriters, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered agrees to enter into an underwriting agreement in customary form with such underwriters and the applicable Selling Holder Company agrees to indemnify such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and agents, if any, and each person Person, if any, who controls such persons (underwriters within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as herein before provided above with respect to the indemnification of the Selling Holders.
6.2. To holders of Registrable Securities; provided that the extent permitted by applicable lawCompany shall not be required to indemnify any such underwriter, each Selling Holder shall indemnify and hold harmless the Companyor any officer, each director or employee of its directors, each of its officers who shall have signed the registration statement, each such underwriter or any Person who controls the Company such underwriter within the meaning of Section 15 of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability (or proceedings in respect thereof) or expense if settlement for which indemnification is effected without claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the consent Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the relevant Selling Holder sale of Registrable Securities, which consent shall not be unreasonably withheld, conditioned Securities to such Person if such statement or delayed, omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by underwriter was provided with such Selling Holderamended or supplemented final prospectus.
6.3. Promptly after receipt by an indemnified party under this Section 6 (b) In connection with any registration statement in which a holder of notice of the commencement of any actionRegistrable Securities is participating, suiteach such holder, proceedingseverally and not jointly, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, andindemnify, to the fullest extent permitted by Applicable Law, the indemnifying party so desiresCompany, jointly with any other indemnifying party similarly given noticeeach underwriter and their respective officers, to assume directors, employees and agents, if any, and each Person, if any, who controls the defense thereof with counsel reasonably satisfactory to Company or such underwriter within the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation meaning 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses Section 15 of the indemnified party and shall not have the right to assume the defense of such actionSecurities Act, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of against any losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses referred resulting from any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission of a material fact required to be stated in the registration statement or prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein (in the case of any prospectus, in light of the circumstances under which they were made) not misleading, but only to the extent that such untrue statement is contained in or such omission is from information so concerning a holder furnished in writing by such holder expressly for use therein; provided that such holder’s obligations hereunder shall be limited to an amount equal to the net proceeds to such holder of the Registrable Securities sold pursuant to such registration statement.
(c) Any Person entitled to indemnification under the provisions of this Section 6:
3.7 shall (i) The give prompt notice to the indemnifying party, party of any claim with respect to which it seeks indemnification and (ii) unless in lieu of indemnifying such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, permit such indemnifying party to assume the defense of such claim, with counsel reasonably satisfactory to the indemnified party; and if such defense is so assumed, such indemnifying party shall not enter into any settlement without the consent of the indemnified party if such settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any liability for any settlement made without its consent (which shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article III shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such indemnifying party shall not be obligated to pay the fees and expenses of more than one counsel or firm of counsel for all parties indemnified by such indemnifying party in respect of such claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties in respect to such claim.
(d) If for any reason the foregoing indemnity is unavailable, then the indemnifying party shall contribute to the amount paid or payable by such the indemnified party as a result of such losses, claims, damages, liabilities or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other or (ii) if the allocation provided by clause (i) above is not permitted by Applicable Law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnifying party and the indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, party as well as any other relevant equitable considerations. The relative fault Notwithstanding the foregoing, no holder of such indemnifying party and indemnified parties Registrable Securities shall be determined by reference to, among other things, whether required to contribute any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result in excess of the losses, claims, damages, liabilities and expenses referred amount such holder would have been required to above shall be deemed pay to include, subject to an indemnified party if the limitations set forth in indemnity under Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii3.7(b) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i)was available. No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The obligation of any Person to contribute pursuant to this Section 3.7 shall be several and not joint.
6.5. If indemnification is available under (e) An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 6, 3.7 to or for the indemnifying parties shall indemnify each account of the indemnified party from time to the full extent provided time promptly upon receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in this Section 6 without regard to the relative fault 3.7 shall remain in full force and effect regardless of such indemnifying party any investigation made by or indemnified party on behalf of a participating holder of Registrable Securities, its officers, directors, agents or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company Person, if any, who controls such holder as aforesaid, and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion Transfer of Equity Securities by such holder and the termination of this Agreement for any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsreason.
Appears in 1 contract
Sources: Stockholders Agreement (Eye Care Centers of America Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To (a) The Company shall indemnify, to the fullest extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling HolderApplicable Law, each underwriter or Agent in any underwritten or agented offeringholder of Registrable Securities, its officers, directors, partners, employees and agents, if any, and each Person, if any, who controls such Selling Holder, underwriter or Agent holder within the meaning of Section 15 of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (under the Securities Act or common law or otherwise), joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred resulting from any violation by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any the Company of the foregoing Persons may become subject under provisions of the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such any registration statement or prospectus, including prospectus (and as amended or supplemented if amended or supplemented) or any preliminary prospectus or final prospectus or caused by any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of any prospectus, in light of the circumstances under which they were made, ) not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely except to the extent that it arises out of such losses, claims, damages, liabilities (or is based upon (xproceedings in respect thereof) a Violation which occurs or expenses are caused by any untrue statement or alleged untrue statement contained in reliance upon and or by any omission or alleged omission from information concerning any holder furnished in conformity with written information furnished writing to the Company by the indemnified party such holder expressly for use in connection with therein. If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, no action or failure to act on the part of such registration, underwriters (whether or (y) the failure not such underwriter is an Affiliate of any person entitled holder of Registrable Securities) shall affect the obligations of the Company to indemnification hereunder to deliver or make available to a purchaser indemnify any holder of Registrable Securities (or any other Person pursuant to the extent required by law), a copy of preceding sentence. If the Public Offering pursuant to any registration statementstatement provided for under this Article III is made through underwriters, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered agrees to enter into an underwriting agreement in customary form with such underwriters and the applicable Selling Holder Company agrees to indemnify such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and agents, if any, and each person Person, if any, who controls such persons (underwriters within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as herein before provided above with respect to the indemnification of the Selling Holders.
6.2. To holders of Registrable Securities; provided that the extent permitted by applicable lawCompany shall not be required to indemnify any such underwriter, each Selling Holder shall indemnify and hold harmless the Companyor any officer, each director or employee of its directors, each of its officers who shall have signed the registration statement, each such underwriter or any Person who controls the Company such underwriter within the meaning of Section 15 of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability (or proceedings in respect thereof) or expense if settlement for which indemnification is effected without claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the consent Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the relevant Selling Holder sale of Registrable Securities, which consent shall not be unreasonably withheld, conditioned Securities to such Person if such statement or delayed, omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by underwriter was provided with such Selling Holderamended or supplemented final prospectus.
6.3. Promptly after receipt by an indemnified party under this Section 6 (b) In connection with any registration statement in which a holder of notice of the commencement of any actionRegistrable Securities is participating, suiteach such holder, proceedingseverally and not jointly, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, andindemnify, to the fullest extent permitted by Applicable Law, the indemnifying party so desiresCompany, jointly with any other indemnifying party similarly given noticeeach underwriter and their respective officers, to assume directors, employees and agents, if any, and each Person, if any, who controls the defense thereof with counsel reasonably satisfactory to Company or such underwriter within the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation meaning 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses Section 15 of the indemnified party and shall not have the right to assume the defense of such actionSecurities Act, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of against any losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses referred resulting from any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission of a material fact required to be stated in the registration statement or prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein (in the case of any prospectus, in light of the circumstances under which they were made) not misleading, but only to the extent that such untrue statement is contained in or such omission is from information so concerning a holder furnished in writing by such holder expressly for use therein; provided that such holder’s obligations hereunder shall be limited to an amount equal to the net proceeds to such holder of the Registrable Securities sold pursuant to such registration statement. It is understood and agreed that the indemnification obligations of each holder of Registrable Securities pursuant to any underwriting agreement entered into in connection with any such registration statement shall be limited to the obligations contained in this Section 6:3.7(b).
(c) Any Person entitled to indemnification under the provisions of this Section 3.7 shall (i) The give prompt notice to the indemnifying party, party of any claim with respect to which it seeks indemnification and (ii) unless in lieu of indemnifying such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, permit such indemnifying party to assume the defense of such claim, with counsel reasonably satisfactory to the indemnified party; and if such defense is so assumed, such indemnifying party shall not enter into any settlement without the consent of the indemnified party if such settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any liability for any settlement made without its consent (which shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article III shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such indemnifying party shall not be obligated to pay the fees and expenses of more than one counsel or firm of counsel for all parties indemnified by such indemnifying party in respect of such claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties in respect to such claim.
(d) If for any reason the foregoing indemnity is unavailable, then the indemnifying party shall contribute to the amount paid or payable by such the indemnified party as a result of such losses, claims, damages, liabilities or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other or (ii) if the allocation provided by clause (i) above is not permitted by Applicable Law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnifying party and the indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, party as well as any other relevant equitable considerations. The relative fault Notwithstanding the foregoing, no holder of such indemnifying party and indemnified parties Registrable Securities shall be determined by reference to, among other things, whether required to contribute any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result in excess of the losses, claims, damages, liabilities and expenses referred amount such holder would have been required to above shall be deemed pay to include, subject to an indemnified party if the limitations set forth in indemnity under Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii3.7(b) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i)was available. No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The obligation of any Person to contribute pursuant to this Section 3.7 shall be several and not joint.
6.5. If indemnification is available under (e) An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 6, 3.7 to or for the indemnifying parties shall indemnify each account of the indemnified party from time to the full extent provided time promptly upon receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in this Section 6 without regard to the relative fault 3.7 shall remain in full force and effect regardless of such indemnifying party any investigation made by or indemnified party on behalf of a participating holder of Registrable Securities, its officers, directors, agents or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company Person, if any, who controls such holder as aforesaid, and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion Transfer of Equity Securities by such holder and the termination of this Agreement for any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsreason.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1(a) Indemnification by the Company. To the extent permitted by applicable law, the The Company shall agrees to indemnify ------------------------------ and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of Shareholders' Representative and the Securities Act, Shareholders from and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses reasonable costs of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise ) arising out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement the Registration Statement or prospectus contained therein or in any amendment or supplement thereto or in any preliminary prospectus, including or arising out of or based upon any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, except insofar as such losses, claims, damages, liabilities or expenses arise out of, or are based upon, any such untrue statement or omission or allegation thereof based upon information furnished in writing to the Company by the Shareholders' Representative or any Shareholder or on the Shareholders' behalf expressly for use therein and; provided, howeverfurther, that with respect to any -------- ------- untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus, the indemnification required by indemnity agreement contained in this Section 6.1 subsection shall not apply to amounts paid in settlement of the extent that any such loss, claim, damage, liability or expense if such settlement is effected without results from the consent fact that a current copy of the Company (which consent shall prospectus was not be unreasonably withheld, conditioned sent or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely given to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of asserting any such loss, claim, damage, liability or expense if settlement is effected without at or prior to the consent written confirmation of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 of notice sale of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which Registrable Securities to such indemnified party may make a claim under this Section 6, such indemnified party shall deliver to person if it is determined that it was the indemnifying party a written notice responsibility of the commencement thereof and the indemnifying party shall have the right Shareholders to participate in, and, to the extent the indemnifying party so desires, jointly provide such person with any other indemnifying party similarly given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses a current copy of the indemnified party prospectus and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control current copy of the defense within thirty (30) days after receiving notice thereof; provided, that prospectus would have cured the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the defect giving rise to such indemnified party of an unconditional release from all loss, claim, damage, liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyexpense.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To (i) The Company shall, without limitation as to time, indemnify and hold harmless, to the full extent permitted by applicable law, the Company shall indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities ActStockholder, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, members, agents and employees and of each person of them, each Person who controls each such persons Person (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 Stockholder" ), to the same fullest extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable lawlawful, each Selling Holder shall indemnify from and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities liabilities, actions or proceedings (whether commenced or threatened) reasonable costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable expenses (joint and several), including attorneys’ fees and disbursements and reasonable expenses of investigation) (collectively, incurred "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or 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 of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by the Company to such Stockholder expressly for use in such Registration Statement or prospectus and that such statement or omission was reasonably relied upon by such party pursuant Stockholder in preparation of such Registration Statement, prospectus or form of prospectus; provided, however, that the Company shall not be liable in any such case to the extent that the Company has furnished in writing to such Stockholder within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to such Stockholder, and such Stockholder failed to include such information therein; provided, further, however, that the Company shall not be liable to any actual Person who participates as an underwriter in the offering or threatened actionsale of Registrable Securities or any other Person, suitif any, proceeding or investigation, or to which any who controls such underwriter(s) within the meaning of the foregoing Persons may otherwise become subject under Securities Act to the Securities Act, the Exchange Act or other federal or state laws, insofar as extent that any such losses, claims, damages, liabilities and expenses Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Violation, in each case solely preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with or prior to the extent that such Violation occurs in reliance upon and in conformity with delivery of written information furnished confirmation of the sale by such Selling Holder Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (C) the Company has complied with its Representatives obligations under Section 4(e)(iii). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or controlling persons expressly on behalf of such Indemnified Stockholder.
(ii) In connection with any Registration Statement in which a Stockholder is participating, such Stockholder, or an authorized officer of such Stockholder, shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally and not jointly, to indemnify, to the full extent permitted by law, the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such registrationcontrolling persons (each, an "Indemnified Company", and together with the Indemnified Stockholders, the "Indemnified Parties"), from and against all Losses, as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or 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 of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by such Stockholder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was reasonably relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, however, that (x) the indemnification required by this Section 6.2 such Stockholder shall not apply be liable in any such case to amounts paid the extent that such Stockholder has furnished in settlement writing to the Company within a reasonable period of time prior to the filing of any such lossRegistration Statement or prospectus or amendment or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, claim, damage, liability or expense if settlement is effected without information previously furnished to the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayedCompany, and (y) in the Company failed to include such information therein. In no event shall the liability of any selling Stockholder hereunder be greater in amount than the after-tax dollar amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering (net of payment of all expenses) received by such Selling HolderStockholder upon the sale of the Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Company.
6.3. Promptly after receipt by an indemnified (iii) Any Indemnified Party shall give prompt notice to the party under this Section 6 of notice or parties from which such indemnity is sought (the "Indemnifying Parties") of the commencement of any action, suit, proceeding, proceeding or investigation or written threat thereof made in writing for (a "Proceeding") with respect to which such indemnified party may make a claim under this Section 6Indemnified Party seeks indemnification or contribution pursuant hereto; provided, such indemnified party however, that the failure to so notify the Indemnifying Parties shall deliver not relieve the Indemnifying Parties from any obligation or liability except to the indemnifying party a written notice of extent that the commencement thereof and the indemnifying party Indemnifying Parties have been prejudiced by such failure. The Indemnifying Parties shall have the right right, exercisable by giving written notice to participate in, andan Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the extent the indemnifying party so desiresIndemnifying Parties' expense, jointly with any other indemnifying party similarly given notice, to assume the defense thereof of any such Proceeding, with counsel reasonably satisfactory to the partiessuch Indemnified Party; provided, however, that an indemnified party Indemnified Party or Indemnified Parties (if more than one such Indemnified Party is named in any Proceeding) shall have the right to retain employ separate counsel in any such action, claim or proceeding Proceeding and to participate in the defense thereof, provided, that but the indemnified party fees and expenses of such counsel shall be responsible for its own fees and disbursements and expenses unless representation at the expense of such indemnified party by Indemnified Party or Indemnified Parties unless: (x) the counsel retained by the indemnifying party would be inappropriate due Indemnifying Parties agree to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements expenses; (y) the Indemnifying Parties fail promptly to assume the defense of such Proceeding or fail to employ counsel reasonably satisfactory to such Indemnified Party or Indemnified Parties; or (z) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party or Indemnified Parties and expenses the Indemnifying Parties, and there may be one or more defenses available to such Indemnified Party or Indemnified Parties that are different from or additional to those available to the Indemnifying Parties, in which case, if such Indemnified Party or Indemnified Parties notifies the Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the indemnified party and Indemnifying Parties, the Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one such actionProceeding or separate but substantially similar or related Proceedings in the same jurisdiction, claim arising out of the same general allegations or proceeding on behalf circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified partyIndemnified Party or Indemnified Parties. Whether or not such defense is assumed by the Indemnifying Parties, such Indemnifying Parties or Indemnified Party or Indemnified Parties will not be subject to any liability for any settlement made without its or their consent (but such consent will not be unreasonably withheld). The failure Indemnifying Parties shall not consent to deliver written notice to the indemnifying party within a reasonable time following the commencement entry of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim judgment or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for enter into any settlement of any action, proceeding or claim which (A) provides for other than monetary damages without the written consent of the indemnifying party, Indemnified Party or Indemnified Parties (which consent shall not be unreasonably withheld, conditioned withheld or delayed. No indemnifying party shall consent to any settlement of any action, proceeding ) or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that (B) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party Indemnified Party or Indemnified Parties of an unconditional release a release, in form and substance satisfactory to the Indemnified Party or Indemnified Parties, from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyProceeding for which such Indemnified Party would be entitled to indemnification hereunder.
6.4. (iv) If the indemnification required by provided for in this Section 6 from the indemnifying party 4(g) is unavailable to an indemnified party hereunder Indemnified Party or is insufficient to hold such Indemnified Party harmless for any Losses in respect of any losses, claims, damages, liabilities or expenses referred to in which this Section 6:
(i4(g) The indemnifying partywould otherwise apply by its terms, then each applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall have a joint and several obligation to contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such lossesLosses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of and relative benefit to the indemnifying party Indemnifying Party, on the one hand, and indemnified parties such Indemnified Party, on the other hand, in connection with the actions actions, statements or omissions that resulted in such losses, claims, damages, liabilities or expenses, Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party Indemnifying Party, on the one hand, and indemnified parties Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed taken by, or relates to information supplied by, such indemnifying party Indemnifying Party or indemnified partiesIndemnified Party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent any such Violationaction, statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above any Losses shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 4(g)(i) or proceeding.
(ii4(g)(ii) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 4(g)(iv) were determined by pro pro-rata allocation or by any other method of allocation that does not take into account of the equitable considerations referred to in this Section 6.4(i4(g)(iv). No Person Notwithstanding the provisions of this Section 4(g)(iv), an Indemnifying Party that is a selling Stockholder shall not be required to contribute any amount in excess of the amount by which the net after-tax proceeds received by such Indemnifying Party exceeds the amount of any damages that such Indemnifying Party has otherwise been required to pay by reasons of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Amendment (Eplus Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1(a) Indemnification by the Company. To The Company shall indemnify, to ------------------------------ the fullest extent permitted by applicable law, the Company shall indemnify each holder of Registrable Securities, its officers, directors and hold harmless each Selling Holderagents, each underwriter or Agent in any underwritten or agented offeringif any, and each Person, if any, who controls such Selling Holder, underwriter or Agent holder within the meaning of Section 15 of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (under the Securities Act or common law or otherwise), joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred resulting from any violation by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any the Company of the foregoing Persons may become subject under provisions of the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such any registration statement or prospectus, including prospectus (and as amended or supplemented if amended or supplemented) or any preliminary prospectus or final prospectus or caused by any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of any prospectus, in light of the circumstances under which they were made, ) not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely except to the extent that it arises out of such losses, claims, damages, liabilities (or is based upon (xproceedings in respect thereof) a Violation which occurs or expenses are caused by any untrue statement or alleged untrue statement contained in reliance upon and or by any omission or alleged omission from information concerning any holder furnished in conformity with written information furnished writing to the Company by the indemnified party such holder expressly for use in connection with therein. If the offering pursuant to any registration statement provided for under this Section 2 is made through underwriters, no action or failure to act on the part of such registration, underwriters (whether or (y) the failure not such underwriter is an affiliate of any person entitled holder of Registrable Securities) shall affect the obligations of the Company to indemnification hereunder to deliver or make available to a purchaser indemnify any holder of Registrable Securities (or any other Person pursuant to the preceding sentence. If the offering pursuant to any registration statement provided for under this Section 2 is made through underwriters, the Company agrees, to the extent required by law)such underwriters, a copy to enter into an underwriting agreement in customary form with such underwriters and to indemnify such underwriters, their officers, directors and agents, if any, and each Person, if any, who controls such underwriters within the meaning 12 of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if Section 15 of the Securities Act to the same was required by applicable law extent as hereinbefore provided with respect to be delivered or made available), provided, the indemnification of the holders of Registrable Securities; provided that the Company shall have timely delivered not be required to the applicable Selling Holder indemnify any such registration statementunderwriter, including or any officer or director of such preliminary prospectus underwriter or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person Person who controls such persons (underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability (or proceedings in respect thereof) or expense if settlement for which indemnification is effected without claimed results from such underwriter's failure to send or give a copy of an amended or supplemented final prospectus to the consent Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders sale of Registrable Securities under this Section 6 shall survive to such Person if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsunderwriter was provided with such amended or supplemented final prospectus.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To (a) Strategic REIT and the extent permitted by applicable lawIssuer agree to indemnify, the Company shall indemnify defend and hold harmless each Selling Initial Purchaser, each Holder, each underwriter or Agent in any underwritten or agented offering, each person (a “Controlling Person”), if any, who controls such Selling Holder, underwriter any Initial Purchaser or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to Act and the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable lawrespective officers, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each partners, employees, representatives and agents of its officers who shall have signed any Initial Purchaser, the registration statementHolders or any Controlling Person (each, each Person who controls the Company within the meaning of the Securities Actan “Indemnified Party”), each underwriter or Agent in any underwritten or agented offering from and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses liability, claim or any actions in respect thereof (joint and several), including attorneys’ fees and disbursements and expenses the reasonable cost of investigation, incurred by ) which such party pursuant to any actual Indemnified Party may incur or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject to under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such lossesloss, claimsdamage, damagesexpense, liabilities and expenses arise liability, claim or action arises out of or are is based upon any Violationuntrue 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 each case solely to the extent that light of the circumstances under which such Violation occurs in reliance upon statements were made, not misleading, and in conformity with written information furnished Strategic REIT and the Issuer shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by such Selling Holder or its Representatives or controlling persons expressly for use them in connection with investigating or defending any such registrationloss, damage, expense, liability, claim or action in respect thereof; provided, however, that (x) Strategic REIT and the Issuer shall not be required to provide any indemnification required by pursuant to this Section 6.2 shall not apply to amounts paid 6(a) in settlement of any such case insofar as any such loss, claimdamage, expense, liability, claim or action arises out of or is based upon (i) any untrue statement or omission or alleged untrue statement or omission of a material fact contained in, or omitted from, and in conformity with information furnished in writing by or on behalf of an Initial Purchaser or a Holder to Strategic REIT expressly for use in, any Shelf Registration Statement or any Prospectus or (ii) a disposition, pursuant to a Shelf Registration Statement, of Registrable Securities by an Indemnified Party during a Suspension Period, provided such Indemnified Party received, prior to such disposition, a Suspension Notice with respect to such Suspension Period; provided further, however, that this indemnity agreement will be in addition to any liability which Strategic REIT and the Issuer may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless Strategic REIT and the Issuer, each of its directors, officers, employees, representatives, agents and any person who controls Strategic REIT and the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Guarantor Indemnified Party”) from and against any loss, damage, liability expense, liability, claim or expense any actions in respect thereof (including the reasonable cost of investigation) which such Guarantor Indemnified Party may incur or become subject to under the Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability, claim or action arises out of or is based upon (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 Strategic REIT 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 Strategic REIT 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 settlement is effected without required by the consent Securities Act, of the relevant Selling most recent applicable Prospectus provided to such Holder by Strategic REIT pursuant to Section 3(i) or Section 2(d)(i)(C), provided Strategic REIT shall have theretofore provided such Holder with copies of Registrable Securitiessuch Prospectus in a timely manner so as to permit such delivery; and, subject to the limitation set forth in the immediately preceding clause, each Holder shall reimburse, as incurred, Strategic REIT and the Issuer for any legal or other expenses reasonably incurred by Strategic REIT and the Issuer or any such controlling person in connection with investigating or defending any loss, damage, expense, liability, claim or action in respect thereof. This indemnity agreement will be in addition to any liability which consent shall not be unreasonably withheld, conditioned such Holder may otherwise have to Strategic REIT and the Issuer or delayed, and (y) in 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 any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling HolderHolder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
6.3. Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of (c) If any action, suitsuit or proceeding (each, proceedinga “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), investigation or threat thereof made such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing for which such indemnified party may make a claim under this Section 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof institution of such Proceeding and the indemnifying party 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the partiesof such Proceeding; provided, however, that an indemnified party 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 retain separate employ its own counsel in any such actioncase, claim or proceeding but the fees and to participate 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 thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by 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 retained by the indemnifying party would that there may be inappropriate due one or more defenses available to actual it that are different from, additional to or potential differing interests between in conflict with those available to such indemnified party and any other party represented by such counsel in such proceeding Indemnifying Party (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and Indemnifying Party shall not have the right to assume direct that portion of the defense of such action, claim or proceeding Proceeding on behalf of the Indemnified Party, but such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if Indemnifying Party may employ counsel and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own but the fees and expenses of such counsel and at its own expense. No indemnifying party 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 an indemnified party such action). An Indemnifying Party shall not be liable for any settlement of any action, proceeding or claim such Proceeding effected without the written consent of such Indemnifying Party, but if settled with the indemnifying partywritten consent of such Indemnifying Party, which consent shall not be unreasonably withheld, conditioned such Indemnifying Party agrees to indemnify and hold harmless an Indemnified Party from and against any loss or delayedliability by reason of such settlement. No indemnifying party shall Indemnifying Party shall, without the prior written consent to of any Indemnified Party, effect any settlement of any actionpending 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, proceeding or claim without unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the written consent subject matter of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that such Proceeding and does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing fault or culpability or a failure to act by any indemnified partyor on behalf of such Indemnified Party.
6.4. (d) If the indemnification required by provided for in this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder 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, liabilities expenses, liabilities, claims or expenses actions referred to in this Section 6:
(i) The indemnifying partytherein, then each applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities expenses, liabilities, claims or expenses actions (i) in such proportion as is appropriate to reflect the relative benefits received by Strategic REIT and the Issuer, on the one hand, and by the Holders or the Initial Purchasers, on the other hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of Strategic REIT and the indemnifying party Issuer, on the one hand, and indemnified parties of the Holders or the Initial Purchasers, on the other hand, in connection with the actions that statements or omissions which resulted in such losses, claims, damages, liabilities expenses, liabilities, claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of such indemnifying party Strategic REIT and indemnified parties the Issuer, on the one hand, and of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by, such indemnifying party by Strategic REIT and the Issuer or indemnified parties, by the Holders or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any investigation or proceedingProceeding.
(iie) The parties hereto Strategic REIT, the Issuer, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6.4 6 were determined by pro rata allocation or by any other method of allocation that which does not take into account of the equitable considerations referred to in Section 6.4(i)6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under The Holders’ respective obligations to contribute pursuant to this Section 6, the indemnifying parties shall indemnify each indemnified party 6 are several in proportion to the full extent 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 without regard are not exclusive and shall not limit any rights or remedies which may otherwise be available to the relative fault of such indemnifying party or any indemnified party at law or any other equitable consideration referred to in Section 6.4equity.
6.6. (f) The obligations of the Company indemnity and the Selling Holders of Registrable Securities under contribution provisions contained in this Section 6 shall survive the completion remain operative and in full force and effect regardless of (i) any offering termination of Registrable Securities pursuant to a registration statement under this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchasers or any person controlling any Holder or Initial Purchaser, or Strategic REIT, or the Issuer, or Strategic REIT’s or the Issuer’s officers or directors or any person controlling Strategic REIT or the Issuer and otherwise until (iii) the expiration sale of the applicable statute of limitationsany Registrable Security by any Holder.
Appears in 1 contract
Sources: Registration Rights Agreement (Strategic Hotels & Resorts, Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To (a) The Company shall indemnify, to the fullest extent permitted by applicable law, the Company shall indemnify each holder of Registrable Securities, its officers, directors, partners, employees and hold harmless each Selling Holderagents, each underwriter or Agent in any underwritten or agented offeringif any, and each Person, if any, who controls such Selling Holder, underwriter or Agent holder within the meaning of section 15 of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses (under the Securities Act or common law or otherwise), joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred resulting from any violation by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any the Company of the foregoing Persons may become subject under provisions of the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such any registration statement or prospectus, including prospectus (and as amended or supplemented if amended or supplemented) or any preliminary prospectus or final prospectus or caused by any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of any prospectus, in light of the circumstances under which they were made, ) not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely except to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities (or proceedings in respect thereof) or expenses are caused by any untrue statement or alleged untrue statement contained in or by any omission or alleged omission from information concerning any holder furnished in writing to the Company by such holder expressly for use therein. If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, no action or failure to act on the part of such underwriters (whether or not such underwriter is an Affiliate of any holder of Registrable Securities) shall affect the obligations of the Company to indemnify any holder of Registrable Securities or any other Person pursuant to the preceding sentence. If the Public Offering pursuant to any registration statement provided for under this Article III is made through underwriters, the Company agrees to enter into an underwriting agreement in customary form with such underwriters and expenses arise out the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of section 15 of the Securities Act to the same extent as herein before provided with respect to the indemnification of the holders of Registrable Securities; provided that the Company shall not be required to indemnify any such underwriter, or are based upon any Violationofficer, in each case solely director or employee of such underwriter or any Person who controls such underwriter within the meaning of section 15 of the Securities Act, to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability (or proceedings in respect thereof) or expense if settlement for which indemnification is effected without claimed results from such underwriter's failure to send or give a copy of an amended or supplemented final prospectus to the consent Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the relevant Selling Holder sale of Registrable Securities, which consent shall not be unreasonably withheld, conditioned Securities to such Person if such statement or delayed, omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by underwriter was provided with such Selling Holderamended or supplemented final prospectus.
6.3. Promptly after receipt by an indemnified party under this Section 6 (b) In connection with any registration statement in which a holder of notice of the commencement of any actionRegistrable Securities is participating, suiteach such holder, proceedingseverally and not jointly, investigation or threat thereof made in writing for which such indemnified party may make a claim under this Section 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, andindemnify, to the fullest extent permitted by law, the indemnifying party so desiresCompany, jointly with any other indemnifying party similarly given noticeeach underwriter and their respective officers, to assume directors, employees and agents, if any, and each Person, if any, who controls the defense thereof with counsel reasonably satisfactory to Company or such underwriter within the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation meaning 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses section 15 of the indemnified party and shall not have the right to assume the defense of such actionSecurities Act, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of against any losses, claims, damages, liabilities (or proceedings in respect thereof) and expenses referred resulting from any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission of a material fact required to be stated in the registration statement or prospectus or preliminary prospectus or any amendment thereof or supplement thereto or necessary to make the statements therein (in the case of any prospectus, in light of the circumstances under which they were made) not misleading, but only to the extent that such untrue statement is contained in or such omission is from information so concerning a holder furnished in writing by such holder expressly for use therein; provided that such holder's obligations hereunder shall be limited to an amount equal to the net proceeds to such holder of the Registrable Securities sold pursuant to such registration statement.
(c) Any Person entitled to indemnification under the provisions of this Section 6:
3.7 shall (i) The give prompt notice to the indemnifying party, party of any claim with respect to which it seeks indemnification and (ii) unless in lieu of indemnifying such indemnified party's reasonable judgment a conflict -21- of interest between such indemnified and indemnifying parties may exist in respect of such claim, permit such indemnifying party to assume the defense of such claim, with counsel reasonably satisfactory to the indemnified party; and if such defense is so assumed, such indemnifying party shall not enter into any settlement without the consent of the indemnified party if such settlement attributes liability to the indemnified party and such indemnifying party shall not be subject to any liability for any settlement made without its consent (which shall not be unreasonably withheld); and any underwriting agreement entered into with respect to any registration statement provided for under this Article III shall so provide. In the event an indemnifying party shall not be entitled, or elects not, to assume the defense of a claim, such indemnifying party shall not be obligated to pay the fees and expenses of more than one counsel or firm of counsel for all parties indemnified by such indemnifying party in respect of such claim, unless in the reasonable judgment of any such indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties in respect to such claim.
(d) If for any reason the foregoing indemnity is unavailable, then the indemnifying party shall contribute to the amount paid or payable by such the indemnified party as a result of such losses, claims, damages, liabilities or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other or (ii) if the allocation provided by clause (i) above is not permitted by Applicable Law or provides a lesser sum to the indemnified party than the amount hereinafter calculated, in such proportion as is appropriate to reflect not only the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other but also the relative fault of the indemnifying party and the indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, party as well as any other relevant equitable considerations. The relative fault Notwithstanding the foregoing, no holder of such indemnifying party and indemnified parties Registrable Securities shall be determined by reference to, among other things, whether required to contribute any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result in excess of the losses, claims, damages, liabilities and expenses referred amount such holder would have been required to above shall be deemed pay to include, subject to an indemnified party if the limitations set forth in indemnity under Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii3.7(b) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i)was available. No Person that is guilty of fraudulent misrepresentation (within the meaning of Section section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The obligation of any Person to contribute pursuant to this Section 3.7 shall be several and not joint.
6.5. If indemnification is available under (e) An indemnifying party shall make payments of all amounts required to be made pursuant to the foregoing provisions of this Section 6, 3.7 to or for the indemnifying parties shall indemnify each account of the indemnified party from time to the full extent provided time promptly upon receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in this Section 6 without regard to the relative fault 3.7 shall remain in full force and effect regardless of such indemnifying party any investigation made by or indemnified party on behalf of a participating holder of Registrable Securities, its officers, directors, agents or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company Person, if any, who controls such holder as aforesaid, and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion Transfer of Equity Securities by such holder and the termination of this Agreement for any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsreason.
Appears in 1 contract
Indemnification; Contribution. If (a) In connection with any registration of Registrable Securities are included in a registration statement under this Agreement:
6.1. To pursuant to Section 3.01, Section 3.02 or Section 3.03 hereof, the Company agrees to indemnify and hold harmless, to the fullest extent permitted by applicable lawLaw, the Company shall indemnify Stockholder, its Affiliates, directors, officers and hold harmless stockholders and each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, Person who controls such Selling Holder, underwriter or Agent Stockholder within the meaning of either Section 15 of the Securities ActAct or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”) from and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities liabilities, judgments, actions and expenses (including reasonable attorneys’ fees) joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred several caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement any part of any Registration Statement or prospectus, including any preliminary prospectus or final prospectus used in connection with the Registrable Securities or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities ActIssuer FWP, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements thereintherein (in the case of a prospectus, in the light of the circumstances under which they were made, ) not misleading; provided, however, provided that the indemnification Company will not be required by this Section 6.1 shall not apply to amounts paid in settlement of indemnify any Indemnified Person for any losses, claims, damages, liabilities, judgments, actions or expenses resulting from any such loss, claim, damage, liability untrue statement or expense omission if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned untrue statement or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs omission was made in reliance upon on and in conformity with written information with respect to any Indemnified Person furnished to the Company in writing by the indemnified party Stockholder expressly for use in therein.
(b) In connection with such registrationany Registration Statement, preliminary or final prospectus, or (y) Issuer FWP, Stockholder agrees to indemnify the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law)Company, a copy of any registration statementits Directors, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (its officers who sign such Registration Statement and each Person, if the same was required by applicable law to be delivered or made available)any, provided, that who controls the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above the foregoing indemnity from the Company to Stockholder, but only with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each information with respect to any Indemnified Person who controls furnished to the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred writing by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons Stockholder expressly for use in connection with such registrationRegistration Statement, preliminary or final prospectus, or Issuer FWP.
(c) In case any claim, action or proceeding (including any governmental investigation) is instituted involving any Person in respect of which indemnity may be sought pursuant to Section 3.08(a) or (b), such Person (hereinafter called the “indemnified party”) will (i) promptly notify the Person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing; provided, however, provided that (x) the indemnification required by this Section 6.2 failure to give such notice shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to relieve the indemnifying party a written notice of its obligations pursuant to this Agreement except to the commencement thereof and extent such indemnifying party has been prejudiced in any material respect by such failure; (ii) permit 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 given notice, to assume the defense thereof of such claim, action or proceeding with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall to represent the indemnified party; and (iii) pay the fees and disbursements of such counsel related to such claim, action or proceeding. In any such claim, action or proceeding, any indemnified party will have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own counsel, but the fees and disbursements and expenses unless representation of such counsel will be at the expense of such indemnified party by (without prejudice to such indemnified party’s indemnity and other rights under the counsel retained by Charter, By-Laws and applicable Law, if any) unless (A) the indemnifying party and the indemnified party have mutually agreed to the retention of such counsel, (B) the named parties to any such claim, action or proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party has been advised in writing by counsel, with a copy provided to the Company, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing conflicting interests between such indemnified party and any other party represented by such counsel in such proceeding them or (in which case C) the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right has failed to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability employ counsel reasonably satisfactory to the indemnified party under this Section 6 to the extent of such prejudiceparty. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, It is understood that the indemnifying party shall be permitted to participate will not, in connection with any claim, action or proceeding or related claims, actions or proceedings in the defense thereof with its own counsel and at its own expense. No indemnifying party shall same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel at any time for all such indemnified parties) and that all such reasonable fees and expenses will be reimbursed reasonably promptly following a written request by an indemnified party stating under which clause of (A) through (C) above reimbursement is sought and delivery of documentation of such fees and expenses. In the case of the retention of any such separate firm for the indemnified parties, such firm will be designated in writing by the indemnified parties. The indemnifying party will not be liable for any settlement of any actionclaim, action or proceeding or claim effected without the its written consent of the indemnifying party, (which consent shall not be unreasonably withheld), conditioned but if such claim, action or delayedproceeding is settled with such consent or if there has been a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party will have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by the third sentence of this Section 3.08(c), the indemnifying party agrees that it will be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party will not have reimbursed the indemnified party in accordance with such request or reasonably objected in writing, on the basis of the standards set forth herein, to the propriety of such reimbursement prior to the date of such settlement. No indemnifying party shall will, without the prior written consent to of the indemnified party, effect any settlement of any action, pending or threatened proceeding in respect of which any indemnified party is or claim without the written consent of the indemnifying could have been a party and indemnity could have been sought hereunder by such indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to unless such settlement includes an unconditional release of such indemnified party of an unconditional release from all liability in respect on claims that are the subject matter of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified partyproceeding.
6.4. (d) If the indemnification required by provided for in this Section 6 3.08 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities liabilities, judgments, actions or expenses referred to in this Section 6:
(i) The 3.08, then the indemnifying party, in lieu of indemnifying such indemnified party, shall will contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities liabilities, judgments, actions or expenses (i) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties party in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations, or (ii) if the allocation provided by clause (i) is not permitted by applicable Law, in such proportion as is appropriate to reflect not only the relative fault referred to in clause (i) but also the relative benefit of the Company, on the one hand, and Stockholder, on the other, in connection with the statements or omissions that resulted in such losses, claims, damages, liabilities, judgments, actions or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall party will be determined by reference to, among other things, whether any Violation action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been committed taken by, or relates to information supplied by, such indemnifying party or indemnified partiesparty, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationaction. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall will be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.23.08(c), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(iie) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 3.08(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i3.08(d). No Person that is guilty of “fraudulent misrepresentation misrepresentation” (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 3.08(e), Stockholder shall not be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds received by Stockholder with respect to the Registrable Securities exceed the greater of (A) the amount paid by Stockholder for its Registrable Securities and (B) the amount of any damages which Stockholder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Each Stockholder’s obligation to contribute pursuant to this Section 3.08 is several in proportion to the respective number of Registrable Securities held by such Stockholder hereunder and not joint.
6.5(f) For purposes of this Section 3.08, each controlling Person of a Stockholder shall have the same rights to contribution as such Stockholder, and each officer, Director and Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have the same rights to contribution as the Company, subject in each case to the limitations set forth in the immediately preceding paragraph. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 3.08, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from who contribution may be sought from any obligation it or they may have under this Section 3.08 or otherwise except to the extent that it has been prejudiced in any material respect by such failure. No party shall be liable for contribution with respect to any action or claim settled without its written consent; provided, however, that such written consent was not unreasonably withheld.
(g) If indemnification is available under this Section 63.08, the indemnifying parties shall party will indemnify each indemnified party to the full extent provided in this Section 6 Sections 3.08(a) and (b) without regard to the relative fault of such said indemnifying party or indemnified party or any other equitable consideration referred to provided for in Section 6.43.08(d) or (e).
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Sources: Investment Agreement (Great Atlantic & Pacific Tea Co Inc)
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the (a) The Company shall indemnify each of the Selling Stockholders, and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, person (if any, ) who controls such Selling Holder, underwriter or Agent Stockholder within the meaning of Section 15 of the Securities Act of 1933, as amended (the "Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons"), against any and all losses, claims, damages, damages and liabilities and expenses expense (joint or several), including attorneys’ all reasonable fees and disbursements and expenses of investigationcounsel incurred in defending against any such claim, incurred damage or liability) caused by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such the registration statement filed or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under to be filed with the Securities Actand Exchange Commission (the "Commission"), in connection with the Public Offering, as the same may be amended or supplemented from time to time (the "Registration Statement") or in any prospectus filed with, or delivered to, the Commission in connection with the Public Offering, or caused by any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therefrom of a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in the light of the circumstances under in which they were made, not misleading; provided, however, that the indemnification required by this Section 6.1 shall not apply to amounts paid in settlement of any -------- ------- insofar as such losslosses, claimclaims, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liabilitydamages, or expense solely liabilities are caused by an untrue statement of a material fact contained in, or any material fact omitted from, information relating to the extent that it arises out of or is based upon (x) a Violation which occurs Selling Stockholder furnished in reliance upon and in conformity with written information furnished writing to the Company by the indemnified party such Selling Stockholder, in his capacity as Selling Stockholder, for use in connection with such registrationthe Registration Statement or any amendment or supplement thereto, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law)such prospectus, a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that then the Company shall have timely delivered no obligation hereunder to indemnify the Selling Stockholder furnishing such information. For purposes hereof, such information shall be deemed to be the information provided to the applicable Company by such Selling Holder Stockholder pursuant to such registration statementSelling Stockholder's Questionnaire for Directors, including such preliminary prospectus or final prospectus contained therein Officers and any amendments or supplements thereto. The Certain other Persons.
(b) Each Selling Stockholder shall indemnify each of the Company shall also indemnify underwritersand the other Selling Stockholders, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person (if any) who controls the Company or such persons (other Selling Stockholder within the meaning of Section 15 of the Securities Act against all losses, claims, damages and liabilities and expense (including all reasonable fees and disbursements of counsel incurred in defending against any such claim, damage or Section 20 liability) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or in any prospectus filed with, or delivered to, the Commission in connection with the Public Offering, or caused by any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the Exchange Act) to the same extent as provided above circumstances in which they were made, not misleading, but only with respect to information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder expressly for use in the Registration Statement or any amendment or supplement thereto, or any such prospectus, provided, however, no -------- ------- Selling Stockholder shall be liable in an amount that exceeds the aggregate initial public offering price of the Stockholder Shares sold by the Selling Stockholder, net of the underwriting discount.
(c) The indemnity agreements of the Company and the Selling Stockholders contained in this Section 2 shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified party and shall survive delivery of shares of Common Stock pursuant to the Public Offering.
(d) In order to provide for just and equitable contribution in circumstances in which indemnification provided for in paragraph (a) of this Section 2 is unavailable, the Company and each of the Selling Holders.
6.2. To Stockholders shall contribute to the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all aggregate losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ all reasonable fees and disbursements and expenses of investigation, counsel incurred by such party pursuant to in defending against any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely to the extent that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Holder or its Representatives or controlling persons expressly for use in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent liability), to which one or more of the relevant Selling Holder of Registrable Securities, which consent shall not Stockholders may be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses subject in such proportion as is appropriate to reflect the relative relevant fault of the indemnifying party Company and indemnified parties the respective Selling Stockholders in connection with the actions statements or omissions that resulted in such losses, claims, damages, liabilities or expenses, and expenses as well as any other relevant equitable considerations. The relative fault ; provided, however, that: -----------------
(i) in any case where any Selling Stockholder is seeking contribution hereunder such Selling Stockholder shall be entitled to contribution from the remaining Selling Stockholders pursuant to this Agreement only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any case be required to contribute or make any payments under this paragraph (d) which in the aggregate exceed his pro rata share of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to includedetermined in accordance with the total number of Company Shares and Stockholder Shares sold by each respective party hereto provided, subject to the limitations however, that, -------- ------- except as set forth in Section 6.1 and Section 6.2subparagraph (iii) of this paragraph (d), any legal or other fees or expenses reasonably incurred no Selling Stockholder shall be liable to contribute an amount that exceeds the aggregate public offering price of the Stockholder Shares sold by such party in connection with any investigation or proceeding.the Selling Stockholder, net of the underwriting discount;
(iiiii) The parties hereto agree that it would not be just and equitable if in the event the Company or any Selling Stockholder defaults on its obligation to make any contribution pursuant to this paragraph (d), the amount by which each of the remaining parties is obligated to contribute hereunder shall be increased in accordance with the relation of the number of shares of Common Stock being sold by each such remaining party to the aggregate number of shares of Common Stock being sold by all such remaining parties;
(iv) neither the Company nor any Selling Stockholder will be required to make any contribution to another Selling Stockholder with respect to matters for which the other Selling Stockholder would not otherwise be entitled to be indemnified under paragraph (a) of this Section 6.4 were determined by pro rata allocation or by any other method 2 had such indemnification been available; and
(v) for purposes of allocation that does not take into account the equitable considerations referred to in Section 6.4(ithis paragraph (d). No Person that is guilty of fraudulent misrepresentation (, each person, if any, who controls a Selling Stockholder within the meaning of Section 11(f15 of the Act, and each director, officer or partner (if any) of such Selling Stockholder, shall have the Securities Act) shall be entitled same rights to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of Agreement as such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4Selling Stockholder.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitations.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the (a) The Company shall will indemnify and hold harmless each Selling Holder, each underwriter or Agent in any underwritten or agented offering, each Person, if any, who controls such Selling Holder, underwriter or Agent within the meaning of the Securities Act, Holder and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, Exchanging Dealer against any and all losses, claims, damagesdamages or liabilities, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons such Holder or Exchanging Dealer may become subject subject, under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any an untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities ActExchange Debt Securities, or any amendments amendment or supplements supplement thereto; or
(ii) , or arise out of or are based upon the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therein a material fact required or allegedly required to be stated therein, therein or necessary or allegedly necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, and will reimburse each Holder and Exchanging Dealer for any legal or other expenses reasonably incurred by such Holder or Exchanging Dealer in connection with investigating or defending any such action or claim; provided, however, that the indemnification required by this Section 6.1 Company shall not apply be liable in any such case to amounts paid in settlement of the extent that any such loss, claim, damage, damage or liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by any Holder or Exchanging Dealer expressly for inclusion in the indemnified party for use in connection with such registrationProspectus; provided further, that if any preliminary Prospectus, any preliminary Prospectus supplement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, contained any alleged untrue statement or allegedly omitted to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading and such statement or omission shall have been corrected in a revised preliminary Prospectus, any preliminary Prospectus supplement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, the Company shall not be liable to any Holder or Exchanging Dealer under this subsection (ya) the failure of any person entitled with respect to indemnification hereunder to deliver such alleged untrue statement or make available to a purchaser of Registrable Securities (alleged omission to the extent required by law)that any such loss, claim, damage or liability of such Holder or Exchanging Dealer results from the fact that such Holder or Exchanging Dealer sold Offered Debt Securities or Exchange Debt Securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of a revised preliminary Prospectus (excluding documents incorporated by reference), preliminary Prospectus supplement (excluding documents incorporated by reference), the Prospectus (excluding documents incorporated by reference), the Prospectus as amended or supplemented (excluding documents incorporated by reference), any registration statement, including any preliminary other amended prospectus relating to the Offered Debt Securities or final prospectus contained therein the Exchange Debt Securities (excluding documents incorporated by reference) or any amendments amendment or supplements supplement thereto relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference), as the case may be, containing a correction of such alleged misstatement or omission, if the same was required by applicable law Company has made available copies thereof to be delivered such Holder or made available)Exchanging Dealer prior to the confirmation of such sale; and provided, providedfurther, that the Company shall have timely delivered not be liable to the applicable Selling any Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons Exchanging Dealer under this subsection (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Acta) to the same extent that any such loss, claim, damage or liability of such Holder or Exchanging Dealer results from the use by such Holder or Exchanging Dealer of the Prospectus as provided above amended or supplemented (excluding documents incorporated by reference) or the Prospectus as amended or supplemented as it may be further amended or supplemented (excluding documents incorporated by reference), as the case may be (i) otherwise than in connection with respect an offer or sale of the Offered Debt Securities or the Exchange Debt Securities, or (ii) at any time nine months or more after the time of issue of the Prospectus as amended or supplemented unless the Company has prior to such use amended or supplemented the Prospectus as amended or supplemented to comply with Section 10(a)(3) of the Act if required pursuant to Section 5(c) hereof and such Holder or Exchanging Dealer uses the Prospectus as amended or supplemented as so further amended or supplemented. Each Holder and Exchanging Dealer acknowledges that the indemnity agreement in this subsection (a) does not extend to any liability which such Holder or Exchanging Dealer might have under Section 5(b) of the Act by reason of the fact that such Holder or Exchanging Dealer sold Offered Debt Securities or Exchange Debt Securities to a person to whom there was not sent or given, at or prior to the indemnification written confirmation of such sale, a copy of the Selling HoldersProspectus (excluding documents incorporated by reference), the Prospectus as amended or supplemented (excluding documents incorporated by reference), any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement relating thereto (excluding documents incorporated by reference), as the case may be, if the Company has made available copies thereof to such Holder or Exchanging Dealer. For purposes of this subsection (a) the Prospectus (excluding documents incorporated by reference), the Prospectus as amended or supplemented (excluding documents incorporated by reference), any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities (excluding documents incorporated by reference) or any amendment or supplement relating thereto (excluding documents incorporated by reference), shall not be deemed to have been made available to a Holder or Exchanging Dealer until such Holder or Exchanging Dealer has received the same.
6.2. To the extent permitted by applicable law, each Selling (b) Each Holder shall and Exchanging Dealer will indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person who controls the Company within the meaning of the Securities Act, each underwriter or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, damages or liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons Company may otherwise become subject subject, under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained any Violationpreliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any amendment or supplement thereto, 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 solely to the extent extent, but only to the extent, that such Violation occurs untrue statement or alleged untrue statement or omission or alleged omission was made in any preliminary Prospectus, any preliminary Prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Offered Debt Securities or the Exchange Debt Securities, or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by such Selling Holder or its Representatives or controlling persons Exchanging Dealer expressly for use inclusion therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with such registration; provided, however, that (x) the indemnification required by this Section 6.2 shall not apply to amounts paid in settlement of investigating or defending any such loss, action or claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder of Registrable Securities, which consent shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. (c) Promptly after receipt by an indemnified party under this Section 6 subsection (a) or (b) above of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party may make shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 6such subsection, notify the indemnifying party in writing of the commencement thereof, and in the event that such indemnified party shall deliver to not so notify the indemnifying party a written within 30 days following receipt of any such notice of the commencement thereof and by such indemnified party, the indemnifying party shall have no further liability under such subsection to such indemnified party unless such indemnifying party shall have received other notice addressed and delivered in the right manner provided in Section 8(c) hereof of the commencement of such action; 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 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 as provided above, the indemnifying party shall be entitled to participate in, therein and, to the extent the indemnifying party so desiresthat it shall wish, jointly with any other indemnifying party similarly given noticenotified, to assume the defense thereof thereof, with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by (who shall not, except with 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 (in which case the indemnifying party shall pay such fees and disbursements and expenses consent of the indemnified party and shall not have the right to assume the defense of such actionparty, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial be counsel to the indemnifying party), shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoingand, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if after notice from the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability 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 respect of each case subsequently incurred by such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party, in connection with the defense thereof other than reasonable costs of investigation.
6.4. (d) If the indemnification required by provided for in this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder under subsection (a) or (b) above in respect of any losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) referred to in this Section 6:
(i) The therein, then each indemnifying partyparty shall, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, damages or liabilities (or expenses actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Holders and Exchanging Dealers on the other from the offering of the Offered Debt Securities or Exchange Debt Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the indemnifying party Company on the one hand and indemnified parties the Holders and Exchanging Dealers on the other in connection with the actions that statements or omissions which resulted in such losses, claims, damages, damages or liabilities (or expensesactions in respect thereof), as well as any other relevant equitable considerations. The benefits received by the Company shall be deemed to be equal to the sum of (x) the total net proceeds from the Initial Placement (before deducting expenses) as set forth on the cover page of the Final Offering Memorandum and (y) the total amount of additional interest which the Company was not required to pay as a result of registering the securities covered by the Registration Statement which resulted in such losses, claims, damages or liabilities. Benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions as set forth on the cover page of the Final Offering Memorandum, and benefits received by any other Holders or Exchanging Dealers shall be deemed to be equal to the value of receiving Offered Debt Securities or Exchange Debt Securities, as applicable, registered under the Act. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, 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, by the Company on the one hand or such indemnifying party Holders or indemnified parties, Exchanging Dealers on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result of Company and the losses, claims, damages, liabilities Holders and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto Exchanging Dealers agree that it would not be just and equitable if contribution pursuant to this Section 6.4 subsection (d) were determined by pro rata allocation (even if the Holders and Exchanging Dealers were treated as one entity for such purpose) or by any other method of allocation that which does not take into account of the equitable considerations referred to above in Section 6.4(ithis subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Holder or Exchanging Dealer shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Offered Debt Securities or Exchange Debt Securities sold pursuant to the Registration Statement exceeds the amount of any damages which such Holder or Exchanging Dealer has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Holders and Exchanging Dealers in this subsection (d) to contribute are several and not joint.
(e) The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive be in addition to any liability that the completion Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of any offering a Holder or Exchanging Dealer and to each person, if any, who controls a Holder or Exchanging Dealer within the meaning of Registrable Securities pursuant to a registration statement the Act or the Exchange Act; and the obligations of the Holders and Exchanging Dealers under this AgreementSection 6 shall be in addition to any liability that the respective Holders and Exchanging Dealers may otherwise have and shall extend, upon the same terms and otherwise until the expiration conditions, to each officer and director of the applicable statute Company and to each person, if any, who controls the Company within the meaning of limitationsthe Act or the Exchange Act.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law(a) The Company agrees to indemnify, the Company shall indemnify defend and hold harmless each Selling Initial Purchaser, each Notice Holder, each underwriter or Agent in any underwritten or agented offering, each person (a “Controlling Person”), if any, who controls such Selling Holder, underwriter any Initial Purchaser or Agent within the meaning of the Securities Act, and each officer, director, partner and employee, of such Selling Holder, underwriter, Agent and such controlling Persons, against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus or any “issuer free writing prospectus” as such term is defined in Rule 433 under the Securities Act, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, a material fact required or allegedly required to be stated therein, or necessary or allegedly 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 6.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Notice Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to Act and the same extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable lawrespective officers, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each partners, employees, representatives and agents of its officers who shall have signed any Initial Purchaser, the registration statementNotice Holders or any Controlling Person (each, each Person who controls the Company within the meaning of the Securities Actan “Indemnified Party”), each underwriter or Agent in any underwritten or agented offering from and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all lossesloss, claimsdamage, damagesexpense, liabilities and expenses liability, claim or any actions in respect thereof (joint and several), including attorneys’ fees and disbursements and expenses the reasonable cost of investigation, incurred by ) which such party pursuant to any actual Indemnified Party may incur or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject to under the Securities Act, the Exchange Act or other federal or state lawsotherwise, insofar as such lossesloss, claimsdamage, damagesexpense, liabilities and expenses arise liability, claim or action arises out of or are is based upon any Violationuntrue 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 each case solely to the extent that light of the circumstances under which such Violation occurs in reliance upon statements were made, not misleading, and in conformity with written information furnished the Company shall reimburse, as incurred, the Indemnified Parties for any legal or other expenses reasonably incurred by such Selling Holder or its Representatives or controlling persons expressly for use them in connection with investigating or defending any such registrationloss, damage, expense, liability, claim or action in respect thereof; provided, however, that (x) the indemnification Company shall not be required by to provide any indemnify pursuant to this Section 6.2 shall not apply to amounts paid 6(a) in settlement of any such case insofar as any such loss, claimdamage, 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; provided further that, with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus relating to a Shelf Registration Statement, the indemnity agreement contained in this Section 6(a) shall not inure to the benefit of any Notice Holder from whom the person asserting any such 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 Notice Holder under the Securities Act in connection with such purchase and any such loss, damage, liability expense, liability, claim or expense if settlement is effected without action of such Notice Holder results from the consent fact that there was not sent or given to such person, at or prior to the written confirmation of the relevant Selling sale of such Registrable Securities to such person, a copy of the final prospectus, provided the Company had previously furnished (whether physically or by public access through the SEC’s Electronic Data Gathering And Retrieval (▇▇▇▇▇) system) sufficient copies of such final prospectus to such Holder in a timely manner as to reasonably permit such Holder to send or give a copy of Registrable Securitiessuch 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 consent shall the Company may otherwise have to such Indemnified Party.
(b) Each Holder, severally and not be unreasonably withheldjointly, conditioned 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 delayedSection 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 (ythe “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 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 any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling HolderHolder upon the sale, pursuant to the Shelf Registration Statement, of the Registrable Securities giving rise to such indemnification obligation.
6.3. Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of (c) If any action, suitsuit or proceeding (each, proceedinga “Proceeding”) is brought against any person in respect of which indemnity may be sought pursuant to either Section 6(a) or Section 6(b), investigation or threat thereof made such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing for which such indemnified party may make a claim under this Section 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement thereof institution of such Proceeding and the indemnifying party 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the partiesof such Proceeding; provided, however, that an indemnified party 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 retain separate employ its own counsel in any such actioncase, claim or proceeding but the fees and to participate 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 thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by 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 retained by the indemnifying party would that there may be inappropriate due one or more defenses available to actual it that are different from, additional to or potential differing interests between in conflict with those available to such indemnified party and any other party represented by such counsel in such proceeding Indemnifying Party (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and Indemnifying Party shall not have the right to assume direct that portion of the defense of such action, claim or proceeding Proceeding on behalf of the Indemnified Party, but such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if Indemnifying Party may employ counsel and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to 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 its own 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 its own expense. No indemnifying party 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 to an indemnified party for any settlement of any actionProceeding 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, proceeding or claim (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 the indemnifying partyany Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to effect any settlement of any actionpending 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, proceeding or claim without unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the written consent subject matter of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that such Proceeding and does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing fault or culpability or a failure to act by any indemnified partyor on behalf of such Indemnified Party.
6.4. (d) If the indemnification required by provided for in this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder 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, liabilities expenses, liabilities, claims or expenses actions referred to in this Section 6:
(i) The indemnifying partytherein, then each applicable Indemnifying Party, in lieu of indemnifying such indemnified partyIndemnified Party, shall contribute to the amount paid or payable by such indemnified party Indemnified Party as a result of such losses, claims, damages, liabilities expenses, liabilities, claims or expenses 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 hand, from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party Company, on the one hand, and indemnified parties of the Holders or the Initial Purchasers, on the other hand, in connection with the actions that statements or omissions which resulted in such losses, claims, damages, liabilities expenses, liabilities, claims or expensesactions, as well as any other relevant equitable considerations. The relative fault of such indemnifying party the Company, on the one hand, and indemnified parties of the Holders or the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether any Violation has been committed by, the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by, such indemnifying party by the Company or indemnified parties, by the Holders or the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violationstatement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities expenses, liabilities, claims and expenses actions referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, include any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any investigation or proceedingProceeding.
(iie) The parties hereto Company, the Holders and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 6.4 6 were determined by pro rata allocation or by any other method of allocation that which does not take into account of the equitable considerations referred to in Section 6.4(i)6(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities giving rise to such contribution obligation and sold by such Holder were offered to the public exceeds the amount of any damages which it has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person that is person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under The Holders’ respective obligations to contribute pursuant to this Section 6, the indemnifying parties shall indemnify each indemnified party 6 are several in proportion to the full extent 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 without regard are not exclusive and shall not limit any rights or remedies which may otherwise be available to the relative fault of such indemnifying party or any indemnified party at law or any other equitable consideration referred to in Section 6.4equity.
6.6. (f) The obligations of the Company indemnity and the Selling Holders of Registrable Securities under contribution provisions contained in this Section 6 shall survive the completion remain operative and in full force and effect regardless of (i) any offering termination of Registrable Securities pursuant to a registration statement under this Agreement, (ii) any investigation made by or on behalf of any Holder or the Initial Purchasers or any person controlling any Holder or Initial Purchaser, or the Company, or the Company’s officers or directors or any person controlling the Company and otherwise until (iii) the expiration sale of the applicable statute of limitationsany Registrable Security by any Holder.
Appears in 1 contract
Indemnification; Contribution. If any Registrable Securities are included in a registration statement under this Agreement:
6.1(a) Indemnification by the Company. To the extent permitted by applicable law, the The Company shall agrees to indemnify ------------------------------ and hold harmless each Selling HolderPerson who participates as an underwriter (any such Person being an "Underwriter"), each underwriter or Agent in any underwritten or agented offeringStockholder and their respective partners, ----------- directors, officers and employees and each Person, if any, who controls such Selling Holder, underwriter any Stockholder or Agent any Underwriter within the meaning of Section 15 of the Securities Act, and each officer, director, partner and employee, Act or Section 20 of such Selling Holder, underwriter, Agent and such controlling Persons, the Exchange Act against any and all losses, claims, damages, liabilities and expenses (joint or several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such lossesliabilities, claims, damages, liabilities judgments and reasonable expenses arise arising out of or are based upon any of the following statements, omissions or violations (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement or prospectus, including any preliminary prospectus or final prospectus Registration Statement (or any “issuer free writing prospectus” as such term is defined in Rule 433 amendment thereto) pursuant to which Registrable Securities were registered under the Securities Act, including all documents incorporated therein by reference, or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state in any such registration statement or prospectus, including any preliminary prospectus or final prospectus or “issuer free writing prospectus”, or any amendments or supplements thereto, therefrom of a material fact required or allegedly required to be stated thereintherein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary or allegedly necessary in order 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 6.1 shall indemnity agreement does not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or expense solely to the extent that it arises out of or is based upon (x) a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by the indemnified party for use in connection with such registration, or (y) the failure of any person entitled to indemnification hereunder to deliver or make available to a purchaser of Registrable Securities (to the extent required by law), a copy of any registration statement, including any preliminary prospectus or final prospectus contained therein -------- ------- Stockholder or any amendments Underwriter or supplements thereto (if the same was required by applicable law to be delivered or made available), provided, that the Company shall have timely delivered to the applicable Selling Holder such registration statement, including such preliminary prospectus or final prospectus contained therein and any amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officersrespective partners, directors, agents officers and employees and each person Person, if any, who controls such persons (any Stockholder or any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above Act with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable lawany loss, each Selling Holder shall indemnify and hold harmless the Companyliability, each of its directorsclaim, each of its officers who shall have signed the registration statementdamage, each Person who controls the Company within the meaning of the Securities Act, each underwriter judgment or Agent in any underwritten or agented offering and each Person who controls such underwriter or Agent within the meaning of the Securities Act, and each officer, director, partner and employee of such underwriter or Agent or such controlling Person, against any and all losses, claims, damages, liabilities and expenses (joint and several), including attorneys’ fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon any Violation, in each case solely expense to the extent that such Violation occurs arising out of any untrue statement or omission or alleged untrue statement or omission (A) made in reliance upon and in conformity with written information furnished to the Company by such Selling Holder Stockholder or its Representatives or controlling persons such Underwriter expressly for use in connection with a Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto) or (B) if such registration; provided, however, that (x) untrue statement or omission or alleged untrue statement or omission was corrected in an amended or supplemented Registration Statement or Prospectus and the indemnification required Company had furnished copies thereof to the selling Underwriter or the selling Stockholder prior to the relevant date of sale by this Section 6.2 shall not apply such Underwriter or such Stockholder to amounts paid in settlement of any the Person asserting such loss, liability, claim, damage, liability judgment or expense if settlement is effected without (provided, in the consent case of an Underwritten Offering, the relevant Selling Holder of Registrable Securities, which consent -------- limitation in this clause (B) shall not be unreasonably withheld, conditioned or delayed, and (y) in no event shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 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 6, such indemnified party shall deliver to the indemnifying party a written notice of the commencement 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 given notice, to assume the defense thereof with counsel reasonably satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain separate counsel in any such action, claim or proceeding and to participate in the defense thereof, provided, that the indemnified party shall be responsible for its own fees and disbursements and expenses unless representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding (in which case the indemnifying party shall pay such fees and disbursements and expenses of the indemnified party and shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party). The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if and only to the extent prejudicial to the indemnifying party, shall relieve such indemnifying party of any liability to the indemnified party under this Section 6 to the extent of such prejudice. Notwithstanding the foregoing, the indemnified party will have the absolute right to conduct and control, through counsel of its choosing (with the fees and disbursements and expenses to be paid by the indemnifying party) the defense, compromise and settlement of any such action, claim or proceeding if the indemnifying party does not elect to assume control of the defense within thirty (30) days after receiving notice thereof; provided, that the indemnifying party shall be permitted to participate in the defense thereof with its own counsel and at its own expense. No indemnifying party shall be liable to an indemnified party for any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. No indemnifying party shall consent to any settlement of any action, proceeding or claim without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, that does not include the giving to such indemnified party of an unconditional release from all liability in respect of such action, proceeding or claim or that requires an admission of wrongdoing by any indemnified party.
6.4. If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any Violation has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such Violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6.4 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in Section 6.4(i). No Person that is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
6.5. If indemnification is available under this Section 6, the indemnifying parties shall indemnify each indemnified party to the full extent provided in this Section 6 without regard to the relative fault of such indemnifying party or indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under this Section 6 shall survive the completion of any offering of Registrable Securities pursuant apply to a registration statement under this Agreement, and otherwise until the expiration of the applicable statute of limitationsParticipating Stockholder).
Appears in 1 contract
Sources: Registration Rights Agreement (Hilfiger Tommy Corp)