Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, expenses and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have. (b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party. (d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d). (e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 4 contracts
Sources: Registration Rights Agreement (KCG Holdings, Inc.), Merger Agreement (Knight Capital Group, Inc.), Merger Agreement (GETCO Holding Company, LLC)
Indemnification; Contribution. (a) The In the event any Registrable Shares are included in a registration statement contemplated by this Agreement, the Company shall, and it hereby agrees to to, indemnify and hold harmless harmless, or cause to be indemnified and held harmless, each Holder of Registrable Securities, the AffiliatesAmneal Group Member and its respective officers, directors, officersemployees and controlling Persons, employeesif any, membersin any offering or sale of the Registrable Shares, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damagesdamages or liabilities in respect thereof and expenses (including reasonable fees of counsel) (collectively, liabilities“Claims”), expenses and actions to which they or any of them each such indemnified party may become subject subject, insofar as such lossesClaims (including any amounts paid in settlement effected with the consent of the Company as provided herein), claims, damages, liabilities and expenses (or actions or proceedings in respect thereof) , arise out of or are based upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Packageregistration statement, or any preliminary, preliminary or final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus contained therein, or in any amendment thereof or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse, upon request, each such Amneal Group Member for any legal or other out-of-pocket expenses reasonably incurred and documented by them in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any Amneal Group Member (or its officers, directors, employee and controlling Persons, if any) in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with the Required Amneal Group Member Information furnished to the Company in writing by such Amneal Group Member or on behalf of such Amneal Group Member by any Representative of the Amneal Group Member, expressly for use therein, that is the subject of the untrue statement or omission.
(b) In the event any Registrable Shares are included in a registration statement contemplated by this Agreement, each Amneal Group Member shall, and hereby agrees to, indemnify and hold harmless the Company and its officers, directors, employees and controlling Persons, if any, in any offering or sale of its Registrable Shares against any Claims to which each such indemnified party may become subject, insofar as such Claims (including any amounts paid in settlement as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and each Amneal Group Member shall, and it hereby agrees to to, reimburse each such indemnified party, as incurred, the Company for any legal or other out-of-pocket expenses reasonably incurred and documented by them the Company in connection with investigating or defending any such lossClaims, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any each case only to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information the Required Amneal Group Member Information furnished to the Company in writing by the Amneal Group Member or on behalf its Representative expressly for use therein that is the subject of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaireomission; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) liability of each Amneal Group Member hereunder shall be limited to an amount equal to the dollar amount of the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in Amneal Group Member from the offering sale of Registrable Shares sold by such Amneal Group Member pursuant to which such Registration Statement, Disclosure Package, Prospectus registration statement or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveprospectus.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of Amneal Group and the commencement of Company agree that if, for any actionreason, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred provisions contemplated by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a5.8(a) or Section 5(b5.8(b) above is held by a court of competent jurisdiction to be are unavailable to or are insufficient to hold harmless an indemnified party with in respect to of any loss, claim, damage, liability, expense or action Claims referred to hereintherein, then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection hand, with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale applicable offering of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if anysecurities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the such indemnifying party on the one hand or the by such indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the first sentence of this Section 5.8(c) is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 5(d5.8(c) were to be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in the preceding sentences of this Section 5(d5.8(c). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) Claims referred to above in this Section 5(d) shall be deemed to include (subject to the limitations set forth in Section 5.9) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action action, proceeding or claim. Notwithstanding the provisions of this Section 5(d), no No Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes Notwithstanding the foregoing, no Amneal Group Member shall be liable to contribute any amount in excess of this Section 5, each Person who controls any Holder the dollar amount equal to the sum of (i) the net proceeds received by such Amneal Group Member from the sale of Registrable SecuritiesShares sold by such Amneal Group Member pursuant to such registration statement or prospectus, agent minus (ii) any amounts paid or underwriter within payable by such Amneal Group Member pursuant to Section 5.8(b) (except in the meaning case of either the Securities Act fraud or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(dwillful misconduct).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 4 contracts
Sources: Stockholders Agreement (Amneal Pharmaceuticals, Inc.), Business Combination Agreement (Impax Laboratories Inc), Business Combination Agreement (Impax Laboratories Inc)
Indemnification; Contribution. (a) The In the event of any registration of any securities of the Company agrees to under the Securities Act, the Company will, and hereby does, indemnify and hold harmless each Holder in the case of Registrable Securitiesany registration statement filed pursuant to Section 2 or 3, the Affiliatesholder of any Registrable Securities covered by such registration statement, directors, its directors and officers, employees, members, managers each officer and agents director of each underwriter, each other person who participates as an underwriter in the offering or sale of such Holder securities and each Person other person, if any, who controls such holder or any such Holder underwriter within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities and expenses, expenses and actions joint or several, to which they such holder or any of them such director or officer or participating or controlling person may become subject under the Securities Act or otherwise, 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 (x) any untrue statement or alleged untrue statement of a any material fact contained in any registration statement under which such 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 Registration Statement as originally filed subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or in any amendment thereof, or the Disclosure Packagesummary prospectus included therein, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the (y) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, or (z) any violation by the Company of any securities laws, and agrees to the Company will reimburse such holder and each such indemnified partydirector, as incurredofficer, 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, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); providedPROVIDED, howeverHOWEVER, that the Company will shall not be liable to any seller, director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in 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 direction of such seller, director, officer, participating person or controlling person for use in the preparation thereof, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or 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 Holder specifically director, officer, participating person or controlling person and shall survive the transfer of such securities by such seller. The Company shall agree to provide for inclusion therein including, without limitation, contribution relating to such indemnity as shall be reasonably requested by any notice and questionnaire, or (ii) out of sales seller of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which or the Company may otherwise haveunderwriters.
(b) Each Holder severally (The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(a), that the Company shall have received an undertaking satisfactory to it from the prospective sellers of such securities and not jointly) agrees their underwriters, to indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 6) the Company, each director of the Company, each officer of the Company who shall sign such registration statement and each of its Affiliatesother person, directorsif any, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, with respect to the fullest extent permitted by applicable lawany statement in or omission from such registration statement, from and against any and all lossespreliminary prospectus, claimsfinal prospectus or summary prospectus included therein, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any if such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any reliance upon and in conformity with written information relating to such Holder furnished to the Company through an instrument duly executed by such sellers or their underwriters specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, and PROVIDED THAT (i) the obligation to provide indemnification pursuant to this Section 6(b) shall be several, and not joint and several, among such sellers and (ii) the liability of each seller hereunder shall be limited to the proportion of any such loss, claim, damage, liability or expense which is equal to the proportion that the public offering price of the shares sold by such seller under such registration statement bears to the total public offering price of all securities sold thereunder, but not in any event to exceed the net proceeds received by such seller 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 Holder specifically for inclusion thereindirector, including, without limitation, any notice officer or controlling person and questionnaire; provided, however, that shall survive the total amount to be indemnified transfer of such securities by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise havesellers.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any actionaction or proceeding involving a claim 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 not relieve the indemnifying party of its obligations under the preceding subdivisions of this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above 6 except to the extent such action and such failure materially prejudices that the indemnifying party; 's liabilities and (ii) will notobligations under this Section 6 are increased as a result of such failure to give notice. In case any such action is brought against an indemnified party, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, in and to assume the extent that it shall wishdefense thereof, jointly with any other indemnifying party similarly notified, to assume the defense thereofextent that it may wish, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after . After notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding unless (i) the indemnifying party’s rights in party shall have failed to retain counsel for the prior sentenceindemnified party as aforesaid, (ii) the indemnifying party and the indemnified party shall have mutually agreed to the right to employ its own retention of such counsel or (and one local counsel), but the iii) representation of such indemnified party shall bear by the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen retained by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any differing interests between such action include both the indemnified party and the indemnifying party and any other 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 and/or other indemnified parties which are different from or additional to those available to the indemnifying party; party (iii) in which case the indemnifying party shall not have employed counsel satisfactory the right to direct the defense of such action on behalf of the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party). No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, 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 compromise if any pending or threatened proceeding plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. The indemnifying party shall not be liable for any settlement of which any proceeding effected without the written consent of such indemnifying party, such consent not to be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify each indemnified party is from and against any loss or could have been a party and indemnity could have been sought hereunder liability by such indemnified party, unless reason of such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyjudgment.
(d) In Indemnification similar to that specified in this Section 6 (with appropriate modifications) shall be given by the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court Company and each seller of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party Registrable Securities with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal required registration or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which qualification of such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities under any federal or any agents state law or underwriters regulation or all of them were treated as one entity for such purpose) or by any governmental authority other method of allocation which does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of than the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 4 contracts
Sources: Note Purchase Agreement (GenuTec Business Solutions, Inc.), Note Purchase Agreement (Technology Investment Capital Corp), Preferred Stock Purchase Agreement (SeaView Mezzanine Fund L P)
Indemnification; Contribution. (a) The Company agrees shall, to the fullest extent permitted by law, indemnify and hold harmless each Holder of Registrable Securities, any Person who is or might be deemed to be a “controlling person” of the AffiliatesCompany or any of its subsidiaries within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Person, a “Controlling Person”), their respective direct and indirect general and limited partners, advisory board members, directors, officers, employeestrustees, managers, members, managers employees, agents, Affiliates and agents of each such Holder shareholders, and each Person other Person, if any, who acts on behalf of or controls any such Holder within or Controlling Person (each of the meaning foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities or expenses arise out of either or are based upon (i) any untrue or alleged untrue statement of a material fact contained in or incorporated by reference in any Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule to Rule 405) or any amendment or supplement to or any document incorporated by reference in the Exchange Actsame, (ii) any omission or alleged omission of a material fact required to be stated in any such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements made in the same not misleading or (iii) any violation or alleged violation by the Company of the Securities Act or any other similar federal or state securities laws or any rule or regulation promulgated under such federal or state securities laws applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities. In addition, the Company shall reimburse each Covered Person for any legal or other expenses reasonably incurred by such Covered Person in connection with investigating, defending or settling any such loss, claim, action, damage or liability. Notwithstanding the previous sentence, the Company shall not be so liable in any such case to the extent that any loss, claim, action, damage, liability or expense arises out of or is based upon any such untrue statement or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any amendment or supplement to or any document incorporated by reference in the same in reliance upon, and in conformity with, written information prepared and furnished to the Company by such Covered Person expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus. This indemnity shall be in addition to any liability the Company may otherwise have.
(b) In connection with any registration in which a Holder of Registrable Securities is participating, each such Holder shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. Each Holder shall, to the fullest extent permitted by applicable law, from indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a Controlling Person against any and all losses, claims, actions, damages, liabilitiesliabilities and expenses, expenses and actions joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities and or expenses (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or in any successor rule to Rule 405) or any amendment thereof of or supplement thereto, to the same or arise out of or are based upon the (ii) any omission or alleged omission to state therein of a material fact required to be stated therein in such Registration Statement, Prospectus, preliminary Prospectus or free writing prospectus or necessary to make the statements therein (made in the same not misleading, but, in the case of each of clauses (i) and (ii), only to the Disclosure Packageextent that such untrue statement or alleged untrue statement, or omission or alleged omission, is made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus or any preliminaryamendment or supplement to the same in reliance upon, final or summary and in conformity with, written information prepared and furnished to the Company by such Holder expressly for use in such Registration Statement, Prospectus, preliminary Prospectus or Free Writing Prospectus included in free writing prospectus. In addition, such Holder shall reimburse the Company, its directors and officers, employees, agents and any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees Person who is or might be deemed to reimburse each such indemnified party, as incurred, be a Controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating investigating, defending or defending settling any such loss, claim, action, damage or liability. The obligation to indemnify pursuant to this Section 11(b) shall be individual and several, not joint and several, for each participating Holder and shall be proportional to and shall not exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by such Holder in the sale of Registrable Securities to which such Registration Statement or Prospectus relates. The indemnity agreement contained in this Section 11(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, expense action or action (whether proceeding if such settlement is effected without the consent of such Holder. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Common Stock by such Holder and its Affiliates, (b) the name and address of such Holder and (c) any additional information about such Holder or on behalf the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereofdocument. This indemnity clause will shall be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under Any Person entitled to indemnification pursuant to this Section 5 of Agreement shall give prompt written notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5of any claim with respect to which it seeks indemnification. Notwithstanding the previous sentence, any failure or delay to so notify the indemnifying party in writing of the commencement thereof; but the failure so to notify shall not relieve the indemnifying party (i) will not relieve it from liability of its obligations under paragraph (a) or (b) above this Agreement, except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve that the indemnifying party from any obligations is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to any indemnification pursuant to this Agreement is brought against an indemnified party other than party, the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein andin and shall have the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the extent that it shall wishindemnifying party’s expense, jointly with any other indemnifying party similarly notified, to assume the defense thereofof any such claim or action, with counsel reasonably satisfactory acceptable to such indemnified party (who shall not, except with the consent of the indemnified party. Notwithstanding the previous sentence, any indemnified party shall continue to be counsel entitled to the indemnifying party), and, except as provided participate in the next sentencedefense of such claim or action, after notice from the indemnifying party to such indemnified party with counsel of its election to so assume the defense thereofown choice, but the indemnifying party shall not be liable obligated to such reimburse the indemnified party for any legal expenses of other counsel or any other fees, costs and expenses subsequently incurred by such the indemnified party in connection with the such defense thereof other than reasonable costs of investigation. Notwithstanding unless (A) the indemnifying party’s rights party has agreed in the prior sentence, the indemnified party shall have the right writing to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable pay such fees, costs and expenses expenses, (B) the indemnifying party has failed to assume the defense of such separate claim or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counsel unless reasonably acceptable to the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (iD) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to present such counsel with a conflict of interest in the reasonable judgment of the indemnified party; or (iiE) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have has reasonably concluded that there may be one or more legal or equitable defenses available to it and/or other any other indemnified parties party which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory . Subject to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees fees, costs and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless parties. The indemnifying party shall not have the use of only one firm of attorneys would be inappropriate due right to settle a conflict of interest in claim or action for which any indemnified party is entitled to indemnification pursuant to this Agreement without the reasonable judgment consent of the indemnified party, The indemnifying party shall not consent to the entry of any judgment or enter into or agree to any settlement relating to such claim or action unless such judgment or settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes as an unconditional term of such judgment or settlement the giving by the claimant or plaintiff in such judgment or settlement to such indemnified party, in form and substance reasonably satisfactory to such indemnified party, of a full and final release from all liability in respect of such claim or action. An The indemnifying party shall not be liable under this Section 5 Agreement for any amount paid or payable or incurred pursuant to any indemnified party regarding any settlement or compromise or consent to the entry of in connection with any judgment with respect to any pending entered or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except settlement effected with the consent of each an indemnified party, consent party unless the indemnifying party has also consented to entry of any such judgment or enter into any settlement (such consent not to be unreasonably withheld, conditioned or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partydelayed).
(d) In If the event that the indemnity indemnification provided for in this Section 5(a) or Section 5(b) above 11 is held by a court of competent jurisdiction to be unavailable to to, or insufficient to hold harmless unenforceable by, an indemnified party with in respect to of any loss, claim, action, damage, liability, liability or expense or action referred to hereinin this Section 11, then each the applicable indemnifying party, in lieu of indemnifying such indemnified party agrees to under this Agreement, shall contribute to the aggregate lossesamount paid or payable by such indemnified party as a result of such loss, claimsclaim, damages and liabilities (includingaction, without limitationdamage, legal liability or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject expense in such proportion as is appropriate to reflect the relative benefits received from by the offering of indemnified party and the Securitiesindemnifying party. If the allocation provided by the preceding sentence is not permitted by applicable law, the indemnifying party shall contribute to such amount in such proportion as applicable, and is appropriate to reflect not only the relative benefits referred to in the preceding sentence but also the relative fault of the indemnifying indemnified party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)indemnifying party, as well as any other relevant equitable considerations. The relative benefit received by fault of the Company shall be deemed to be equal to indemnifying party, on the total value received or proposed to be received (after deducting expenses) by one hand, and of the Company pursuant to indemnified party, on the sale of Securities in an offeringother hand, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on or by the one hand indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated under such federal or state securities law applicable to the Company, and, relating to any action or inaction required of the Company in connection with any registration of securities, whether such action or inaction was perpetrated by the indemnifying party or the indemnified party on the other and party. The relative fault shall also be determined by reference to the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, omission or omissionviolation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) Agreement were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of or allocation which that does not take into account of the equitable considerations referred to above in this Section 5(d11(d). The In no event shall the amount paid or payable which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 11(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by an such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party as a result guilty or liable of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or 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 fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will 11 shall remain in full force and effect, effect regardless of any investigation made by or on behalf of any Holder indemnified party or any officer, director or controlling person of such indemnified party and shall survive the Transfer of any Registrable Securities or the Company or by any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable SecuritiesHolder.
Appears in 4 contracts
Sources: Registration Rights Agreement (Resolute Holdings Management, Inc.), Registration Rights Agreement (Savers Value Village, Inc.), Registration Rights Agreement (Savers Value Village, Inc.)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actshall, to the fullest extent permitted by applicable law, from indemnify and hold harmless each Shareholder and their respective affiliates, directors, officers and employees (each of the foregoing, together with the Shareholders, a “Covered Person”) against any and all losses, claims, actions, damages, liabilitiesliabilities and expenses, expenses and actions joint or several, to which they or any of them such Covered Person may become subject under the Securities Act, the Exchange Act, any state “blue sky” securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, actions, damages, liabilities and or expenses (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included incorporated by reference in any such Registration Statement, prospectus, preliminary prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or in any successor rule thereto) or any amendment thereof or supplement theretothereto or any document incorporated by reference therein, or arise out of or are based upon the (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading or (in iii) any violation or alleged violation by the case Company of the Disclosure Package, Securities Act or any preliminary, final other similar federal or summary Prospectus state securities laws or Free Writing Prospectus included in any such Registration Statement (in light rule or regulation promulgated thereunder applicable to the Company and relating to any action or inaction required of the circumstances under which they were made) not misleadingCompany in connection with any registration of securities, and agrees to the Company shall reimburse each such indemnified party, as incurred, Covered Persons for any legal or other expenses reasonably incurred by them such Covered Person in connection with investigating investigating, defending or defending settling any such loss, claim, damageaction, damage or liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, provided that the Company will shall not be so liable in any such case to the extent that any such loss, claim, action, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement statement, or omission or alleged omission omission, made or incorporated by reference in any such Registration Statement, prospectus, preliminary prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon upon, and in conformity with with, written information prepared and furnished to the Company by or prepared on behalf of any the Company by such Holder specifically Covered Person expressly for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereofuse therein. This indemnity clause will shall be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees In connection with any registration in which a Shareholder is participating, each such Shareholder shall furnish to indemnify and hold harmless the Company in writing such information regarding itself as is required for use in any such Registration Statement or prospectus and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Actshall, to the fullest extent permitted by applicable law, from indemnify and hold harmless the Company, its directors and officers, employees, and affiliates against any and all losses, claims, damages actions, damages, liabilities and expenses, joint or liabilities several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state “blue sky” securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, damages actions, damages, liabilities or liabilities expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, prospectus, preliminary prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or in any successor rule thereto) or any amendment thereof or supplement thereto, thereto or arise out of or are based upon the (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (not misleading, but, in the case of the Disclosure Packageeach of clauses (i) and (ii), or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, extent that any such untrue statement or alleged untrue statement statement, or omission or alleged omission omission, is contained made in such Registration Statement, prospectus, preliminary prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto in reliance upon, and in conformity with, written information relating to such Holder prepared and furnished to the Company by or on behalf of such Holder specifically Shareholder expressly for inclusion use therein, includingand such Shareholder shall reimburse the Company, without limitationits directors and officers, employees, agents and affiliates for any notice and questionnairelegal or other expenses reasonably incurred by them in connection with investigating, defending or settling any such loss, claim, action, damage or liability; provided, however, provided that the total amount obligation to be indemnified by such Holder indemnify pursuant to this Section 5(b5.3(b) shall be limited individual and several, not joint and several, for each participating Shareholder and shall not exceed an amount equal to the net proceeds (after deducting underwriters’ discounts any costs and commissionsexpenses paid by the participating Shareholder) actually received by such Holder Shareholder in the offering sale of Registrable Securities to which such Registration Statement, Disclosure Package, Prospectus Statement or Holder Free Writing Prospectus prospectus relates. This indemnity clause will shall be in addition to any liability which any that such Holder Shareholder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5 of Any Person entitled to indemnification hereunder shall give prompt written notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, of any claim with respect to which it seeks indemnification; provided that any failure or delay to so notify the indemnifying party in writing of the commencement thereof; but the failure so to notify shall not relieve the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above of its obligations hereunder, except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve that the indemnifying party from any obligations is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to any indemnification hereunder is brought against an indemnified party other than party, the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein andin and shall have the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the extent that it shall wishindemnifying party’s expense, jointly with any other indemnifying party similarly notified, to assume the defense thereofof any such claim or action, with counsel reasonably satisfactory acceptable to such indemnified party (who shall not, except with the consent of the indemnified party, ; provided that any indemnified party shall continue to be counsel entitled to the indemnifying party), and, except as provided participate in the next sentencedefense of such claim or action, after notice from the indemnifying party to such indemnified party with counsel of its election to so assume the defense thereofown choice, but the indemnifying party shall not be liable obligated to such reimburse the indemnified party for any legal expenses of other counsel or any other fees, costs and expenses subsequently incurred by such the indemnified party in connection with the such defense thereof other than reasonable costs of investigation. Notwithstanding unless (A) the indemnifying party’s rights party has agreed in the prior sentence, the indemnified party shall have the right writing to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable pay such fees, costs and expenses expenses, (B) the indemnifying party has failed to assume the defense of such separate claim or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counsel unless reasonably acceptable to the indemnified party or to pursue the defense of such claim or action in a reasonably vigorous manner, (iD) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to present such counsel with a conflict of interest in the reasonable judgment of the indemnified party; or (iiE) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have has reasonably concluded that there may be one or more legal or equitable defenses available to it and/or any other indemnified parties which party that is or are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory . Subject to the indemnified party to represent proviso in the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees fees, costs and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless parties. The indemnifying party shall not have the use of only one firm of attorneys would be inappropriate due right to settle a conflict of interest in claim or action for which any indemnified party is entitled to indemnification hereunder without the reasonable judgment consent of the indemnified party. An , and the indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect or enter into or agree to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties settlement relating to such claim or action) action unless such settlement, compromise judgment or consent is consented settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff therein to in writing by such indemnifying indemnified party, which consent in form and substance reasonably satisfactory to such indemnified party, of a full and final release from all liability in respect of such claim or action. The indemnifying party shall not be unreasonably withheld liable hereunder for any amount paid or delayed. No indemnifying party, payable or incurred pursuant to or in the defense of connection with any such claim judgment entered or litigation, shall, except settlement effected with the consent of each an indemnified party, consent party unless the indemnifying party has also consented to entry of any such judgment or enter into any settlement (such consent not to be unreasonably withheld, conditioned or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partydelayed).
(d) In If the event that the indemnity indemnification provided for in this Section 5(a) or Section 5(b) above 5.3 is held by a court of competent jurisdiction to be unavailable to to, or insufficient to hold harmless unenforceable by, an indemnified party with in respect to of any loss, claim, action, damage, liability, liability or expense or action referred to herein, then each the applicable indemnifying party, in lieu of indemnifying such indemnified party agrees to hereunder, shall contribute to the aggregate lossesamount paid or payable by such indemnified party as a result of such loss, claimsclaim, damages and liabilities (includingaction, without limitationdamage, legal liability or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject expense in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party party, on the one hand hand, and of the indemnified party party, on the other hand, in connection with the statements statements, omissions or omissions which violations that resulted in such lossesloss, claimsclaim, damages action, damage, liability or liabilities (or actions in respect thereof), expense as well as any other relevant equitable considerations. The relative benefit received by fault of the Company shall be deemed to be equal to indemnifying party, on the total value received or proposed to be received (after deducting expenses) by one hand, and of the Company pursuant to indemnified party, on the sale of Securities in an offeringother hand, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on or by the one hand indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities was perpetrated by the indemnifying party or the indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, omission or omissionviolation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) hereto were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of or allocation which that does not take into account of the equitable considerations referred to above in this Section 5(d5.3(d). The In no event shall the amount that an Shareholder may be obligated to contribute pursuant to this Section 5.3(d) exceed an amount equal to the net proceeds (after deducting any costs and expenses paid or payable by an the participating Shareholder) actually received by such Shareholder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party as a result guilty or liable of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) Act shall be entitled to contribution from any Person who that was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of indemnification provided for under this Section 5 will Agreement shall remain in full force and effect, effect regardless of any investigation made by or on behalf of the indemnified Person or any Holder officer, director or affiliate of such indemnified Person and shall survive the Transfer of securities and the termination of this Agreement, but only with respect to offers and sales of Registrable Securities or made before the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securitiestermination date.
Appears in 4 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Trivago N.V.), Shareholder Agreement (Travel B.V.)
Indemnification; Contribution. (a) The Company Corporation shall, and it hereby agrees to to, indemnify and hold harmless each Holder of Registrable SecuritiesGotham and its Controlled Affiliates, the AffiliatesLoan Bank and their respective directors, officers, employees and Controlling Persons, if any, and each underwriter, its partners, directors, officers, employeesemployees and controlling Persons, membersif any, managers and agents in any offering or sale of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange ActRegistrable Shares, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, damages or liabilities, actions or proceedings (whether commenced or threatened) in respect thereof and expenses and actions (including attorneys' fees) (collectively, "CLAIMS") to which they or any of them each such indemnified party may become subject subject, insofar as such lossesClaims (including any amounts paid in settlement effected with the consent of the Corporation as provided herein), claims, damages, liabilities and expenses (or actions or proceedings in respect thereof) , arise out of or are based upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Packageregistration statement, or any preliminary, preliminary or final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus contained therein, or in any amendment thereof or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Corporation shall, and it hereby agrees to, reimburse periodically Gotham and its Controlled Affiliates, the Loan Bank or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by them in connection with investigating or defending any such Claims; PROVIDED, HOWEVER, that the Corporation shall not be liable to any such Person in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with information furnished to the Corporation by such Person or any underwriter or representative of such Person expressly for use therein, or by such Person's failure to furnish the Corporation, promptly upon request, with the information with respect to such Person, or any underwriter or representative of such Person, or such Person's intended method of distribution, that is the subject of the untrue statement or omission or if the Corporation shall sustain the burden of proving that such Person or such underwriter sold securities to the Person alleging such Claims without sending or giving, at or prior to the written confirmation of such sale, a copy of the applicable prospectus (excluding any documents incorporated by reference therein) or of the applicable prospectus, as then amended or supplemented (excluding any documents incorporated by reference therein), if the Corporation had previously furnished copies thereof to Gotham, the Loan Bank or such underwriter, and such prospectus corrected such untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement.
(b) Each of Gotham, the applicable Founders and the Loan Bank shall separately (i.e., not on a joint or severable basis)
(i) indemnify and hold harmless the Corporation, its directors, officers, employees, Affiliates and Controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and Controlling Persons, if any, in any offering or sale of Registrable Shares, against any Claims to which each such indemnified party may become subject, and only to the extent that such Claims (including any amounts paid in settlement as provided herein), or actions or proceedings in respect thereof, arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse in each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case only to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Company Corporation by Gotham, the applicable Founders or on behalf of any such Holder specifically the Loan Bank, as the case may be, expressly for inclusion therein includinguse therein, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be reimburse the Corporation for any legal or other out-of-pocket expenses reasonably incurred by the Corporation in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act connection with investigating or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in defending any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveClaim.
(c) Promptly after receipt by an indemnified party under this Section 5 5.6(a) or Section 5.6(b) of written notice of the commencement of any actionaction or proceeding for which indemnification under Section 5.6(a) or Section 5.6(b) may be requested, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, shall notify the such indemnifying party in writing of the commencement thereofof such action or proceeding; but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above except which it may have to the extent any indemnified party in respect of such action and or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure materially prejudices of the indemnifying party; indemnified party to give such notice, and (ii) will not, in any event, no event shall such omission relieve the indemnifying party from any obligations other liability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party other than and it shall notify an indemnifying party of the indemnification obligation provided in paragraph (a) or (b) above. The commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume as sume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding ; PROVIDED, HOWEVER, that (i) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding within 20 days after receiving notice from such indemnified party that the indemnified party believes it has failed to do so; (ii) if such indemnified party who is a defendant in any action or proceeding which is also brought against the indemnifying party reasonably shall have concluded that there may be one or more legal defenses available to such indemnified party which are not available to the indemnifying party’s rights ; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in the prior sentenceany such case, the indemnified party shall have the right to employ assume or continue its own counsel defense as set forth above (and but with no more than one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use firm of counsel chosen by the indemnifying party to represent the for all indemnified party would be inappropriate due to a conflict of interest parties in the reasonable judgment of the indemnified party; (iieach jurisdiction) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; liable for any expenses therefor (iii) including any such reasonable counsel's fees). If the indemnifying party shall is not have employed counsel satisfactory entitled to, or elects not to, assume the defense of a claim, it will not be obligated to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) counsel for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any each indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to such claim. The indemnifying party will not be subject to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying partyliability for any settlement made without its consent, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, party shall, except with without the prior written consent of each the indemnified party, compromise or consent to entry of any judgment or enter into any settlement agreement with respect to any action or compromise if any pending or threatened proceeding in respect of which any indemnification is sought under Section 5.6(a) or Section 5.6(b) (whether or not the indemnified party is an actual or could have been a potential party and indemnity could have been sought hereunder by such indemnified partythereto), unless such compromise, consent or settlement or compromise (i) includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter in respect of such proceedingclaim or litigation, (ii) does not involve subject the imposition of indemnified party to any material injunctive relief or other material equitable remedies or the imposition of any obligations on such indemnified party, remedy and does not otherwise adversely affect such indemnified party, other than as include a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act act, by or on behalf of any the indemnified party.
(d) In Gotham, the event applicable Founders, the Loan Bank and the Corporation agree that if, for any reason, the indemnity provided in Section 5(aindemnification provisions contemplated by Sections 5.6(a) or Section 5(b5.6(b) above is held by a court of competent jurisdiction to be hereof are unavailable to or are insufficient to hold harmless an indemnified party with in respect to of any loss, claim, damage, liability, expense or action Claims referred to hereintherein, then each applicable indemnifying party agrees to shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Claims in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securitiesfault of, as applicable, and relative fault of the indemnifying party party, on the one hand hand, and the indemnified party party, on the other in connection hand, with the statements or omissions which resulted in respect to such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale offering of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if anysecurities. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the such indemnifying party on the one hand or the by such indemnified party on the other party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If, however, the allocation in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults, but also the relative benefits of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contribution contributions pursuant to this Section 5(d5.6(d) were to be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in the preceding sentences of this Section 5(d5.6(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) Claims referred to above in this Section 5(d) shall be deemed to include (subject to the limitations set forth in Section 5.6(c) hereof) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action action, proceeding or claim. Notwithstanding the provisions of this Section 5(d), no No Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 3 contracts
Sources: Equityholders Agreement (Gotham Golf Corp), Equityholders Agreement (Gotham Golf Corp), Equityholders Agreement (Gotham Golf Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless indemnify, to the extent permitted by law, each Holder holder or seller of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder Securities and each Person who that controls any such Holder (within the meaning of either the Securities Act or and the Exchange Act) such holder or seller, to the fullest extent permitted by applicable lawand their respective stockholders, from officers, directors, partners, employees, agents and Affiliates against any and all losses, claims, damages, liabilities, expenses and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise thereof and whether or not such indemnified party is a party thereto), joint or several, and expenses, including attorneys’ fees and disbursements and expenses of investigation (collectively, “Losses”), arising out of of, based upon, relating to or are based upon resulting from any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any registration statement, prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final preliminary prospectus or summary Prospectus prospectus related thereto or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretothereto (or any document incorporated by reference in any of the foregoing) (collectively, or arise out of or are based upon the “Offering Documents”), any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (not misleading in light of the circumstances under in which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred violation or alleged violation by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable of any applicable federal or state securities law or any rule or regulation promulgated thereunder, except insofar as the same are caused by or contained in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished in writing to the Company by such holder expressly for use therein. In connection with an underwritten offering, the Company shall indemnify such underwriters, their stockholders, officers, directors, partners, employees, agents and Affiliates and each Person who controls (within the meaning of the Securities Act and the Exchange Act) such underwriters to the same extent as provided above with respect to the indemnification of the holders or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales sellers of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveSecurities.
(b) Each Holder severally (In connection with any registration statement filed by the Company pursuant to Section 1 or Section 2 hereof 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 law, shall, on a several and not jointly) agrees to joint basis, indemnify and hold harmless the Company and each of Company, its Affiliatesstockholders, directors, officers, partners, employees, members, managers agents and agents Affiliates and each Person who controls the Company (within the meaning of either the Securities Act or and the Exchange Act, to ) the fullest extent permitted by applicable law, from and Company against any and all lossesLosses arising out of, claimsbased upon, damages relating to or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon resulting from any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package Offering Documents or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, not misleading in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, extent that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder writing furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) holder expressly for use therein; provided however that such liability shall be limited to the net amount of proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in holder from the offering sale of Registrable Securities pursuant to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveregistration statement.
(c) Promptly after receipt by an indemnified party under this Section 5 of Any Person entitled to indemnification hereunder shall (i) give prompt written notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but any claim with respect to which it seeks indemnification (provided that the failure so to notify the indemnifying party (i) will give prompt notice shall not relieve it from liability under paragraph (a) or (b) above except impair any Person’s right to indemnification hereunder to the extent such action and such failure materially prejudices has not actually prejudiced the indemnifying party; ) and (ii) will not, unless in any event, relieve such indemnified party’s reasonable judgment (x) a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim or (y) such indemnified party has one or more defenses to such claim that are not available to the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The party, permit such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, of such claim with counsel reasonably satisfactory to such the indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the at such indemnifying party)’s own expense. If such defense is assumed, and, except as provided in the next sentence, after notice from the indemnifying party to shall not settle such claim unless the indemnified party is released and discharged of its election to so assume the any and all liability. Whether or not such defense thereofis assumed, the indemnifying party shall not be liable subject to such indemnified party any liability for any legal expenses of other counsel or any other expenses subsequently incurred settlement made by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party without its consent (but such consent shall have the right to employ its own counsel (and one local counselnot be unreasonably withheld), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the . An indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants inwho is not entitled to, or targets ofelects not to, any such action include both assume the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party defense of a claim shall not have employed counsel satisfactory be obligated to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) counsel for all parties indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An by such indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened such claim, action, suit or proceeding .
(d) The indemnification provided for under this Agreement shall remain in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense full force and effect regardless of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act investigation made by or on behalf of the indemnified party or any stockholder, officer, director, employee, partner, agent or Affiliate or controlling (within the meaning of the Securities Act and the Exchange Act) Person of such indemnified partyparty and shall survive the transfer of securities.
(de) In If the event that indemnification required by this Section 6 from the indemnity provided in Section 5(a) or Section 5(b) above indemnifying party is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with hereunder in respect to of any loss, claim, damage, liability, expense or action Losses referred to hereinin this Section 6:
(i) The indemnifying party, then each applicable in lieu of indemnifying party agrees to such indemnified party, shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Losses in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)Losses, as well as any other relevant equitable considerations. The If the allocation provided by clause (i) is not permitted by applicable law, then the allocation shall be in such proportion as shall be appropriate to reflect the relative benefit benefits received by the Company Company, on the one hand, and such prospective sellers, on the other hand, from their sale of Registrable Securities; provided that the relative benefits received by the prospective sellers shall be deemed not to be equal to exceed the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit net proceeds received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if anysuch sellers. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionviolation. The amount paid or payable by a party as a result of Losses shall be deemed to include, subject to the limitations set forth in Section 6(a) and Section 6(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. The obligations, if any, of the selling holders to contribute as provided in this Section 6(e) are several in proportion to the relative value of their respective Registrable Securities covered by such registration statement and not joint. In addition, no Person shall be obligated to contribute hereunder any amounts in payment for any settlement of any action or Loss effected without such Person’s consent, which shall not be unreasonably withheld.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d6(e) were determined solely by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 5(d6(e)(i). The amount paid or payable by an indemnified party as a result ; provided, however, that with respect to any pro rata allocation, the holders of the losses, claims, damages or liabilities (or actions Registrable Securities included in respect thereof) referred to above in this Section 5(d) any such registration shall be deemed to include any legal or other expenses reasonably incurred by have only received the net proceeds from such indemnified party holders’ sales of Registrable Securities in connection with investigating or defending any such action or claimregistration. Notwithstanding the provisions of this Section 5(d), no No Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 3 contracts
Sources: Registration Rights Agreement (Lear Corp), Registration Rights Agreement (Lear Corp), Registration Rights Agreement (Lear Corp)
Indemnification; Contribution. (a) The Company agrees shall, to the fullest extent permitted by law, indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each any Person who controls any is a “controlling person” of such Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each such Person, a “Controlling Person”), their respective direct and indirect general and limited partners, directors, officers, trustees, managers, members, employees, agents, Affiliates and shareholders, and each other Person, if any, who acts on behalf of or controls any such Holder or Controlling Person (each of the foregoing, a “Covered Person”) against any losses, claims, actions, damages, liabilities and expenses, joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, to the fullest extent permitted by applicable lawany state blue-sky securities laws, from and against any and all lossesequivalent non-U.S. securities laws or otherwise, claims, damages, liabilities, expenses and actions to which they or any of them may become subject insofar as such losses, claims, actions, damages, liabilities and or expenses (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or incorporated by reference in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or in any successor rule thereto) or any amendment thereof or supplement theretothereto or any document incorporated by reference therein, or arise out of or are based upon the (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein not misleading or (in iii) any violation or alleged violation by the case Company of the Disclosure Package, Securities Act or any preliminary, final other similar federal or summary Prospectus state securities laws or Free Writing Prospectus included in any such Registration Statement (in light rule or regulation promulgated thereunder applicable to the Company and relating to any action or inaction required of the circumstances under which they were made) not misleadingCompany in connection with any registration of securities, and agrees to the Company shall reimburse each such indemnified party, as incurred, Covered Person for any legal or other expenses reasonably incurred by them such Covered Person in connection with investigating investigating, defending or defending settling any such loss, claim, damageaction, damage or liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will shall not be so liable in any such case to the extent that any such loss, claim, action, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement statement, or omission or alleged omission omission, made or incorporated by reference in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto or any document incorporated by reference therein in reliance upon upon, and in conformity with with, written information prepared and furnished to the Company by or on behalf of any such Holder specifically Covered Person expressly for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereofuse therein. This indemnity clause will shall be in addition to any liability which the Company may otherwise have.
(b) Each In connection with any registration in which a Holder severally (and not jointly) agrees of Registrable Securities is participating, each such Holder shall furnish to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls in writing such information as the Company within the meaning of either the Securities Act reasonably requests for use in connection with any such Registration Statement or the Exchange ActProspectus and shall, to the fullest extent permitted by applicable law, from indemnify and hold harmless the Company, its directors and officers, employees, agents, Affiliates and shareholders and any Person who is a Controlling Person with respect to the Company against any and all losses, claims, damages actions, damages, liabilities and expenses, joint or liabilities several, to which they or any of them may become subject under the Securities Act, the Exchange Act, any state blue-sky securities laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, damages actions, damages, liabilities or liabilities expenses arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or in any successor rule thereto) or any amendment thereof or supplement thereto, thereto or arise out of or are based upon the (ii) any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (therein, in the case of the Disclosure Packageany Prospectus, preliminary prospectus, free writing prospectus or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementsupplement thereto, in light of the circumstances under which they were made) , not misleading, to but, in the extentcase of each of clauses (i) and (ii), but only to the extent, extent that any such untrue statement or alleged untrue statement statement, or omission or alleged omission omission, is contained made in such Registration Statement, Prospectus, preliminary Prospectus, free writing prospectus (as defined in Rule 405 under the Securities Act or any successor rule thereto) or any amendment thereof or supplement thereto in reliance upon, and in conformity with, written information relating to such Holder prepared and furnished to the Company by or on behalf of such Holder specifically expressly for inclusion use therein, includingand such Holder shall reimburse the Company, without limitationits directors and officers, employees, agents, Affiliates and shareholders and any notice and questionnairePerson who is a Controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating, defending or settling any such loss, claim, action, damage or liability; provided, however, that the total amount obligation to be indemnified by such Holder indemnify pursuant to this Section 5(b13(b) shall be limited individual and several, not joint and several, for each participating Holder and shall not exceed an amount equal to the net proceeds (after deducting underwriters’ discounts and commissionsSelling Expenses) actually received by such Holder in the offering sale of Registrable Securities to which such Registration Statement, Disclosure Package, Prospectus Statement or Holder Free Writing Prospectus relates. The Company and the Holders of the Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders, the only information furnished or to be furnished to the Company for use in any Registration Statement or Prospectus relating to the Registrable Securities or in any amendment, supplement or preliminary materials associated with the same are statements specifically relating to (a) the beneficial ownership of shares of Equity Securities by such Holder and its Affiliates, (b) the name and address of such Holder and any other beneficial owner of such Holder’s Registrable Securities and (c) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document. This indemnity clause will shall be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5 of Any Person entitled to indemnification hereunder shall give prompt written notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5of any claim with respect to which it seeks indemnification; provided, that any failure or delay to so notify the indemnifying party in writing of the commencement thereof; but the failure so to notify shall not relieve the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above of its obligations hereunder, except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve that the indemnifying party from any obligations is actually and materially prejudiced by reason of such failure or delay. In case a claim or an action that is subject or potentially subject to any indemnification hereunder is brought against an indemnified party other than party, the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein andin and shall have the right, exercisable by giving written notice to the indemnified party as promptly as practicable after receipt of written notice from such indemnified party of such claim or action, to assume, at the extent that it shall wishindemnifying party’s expense, jointly with any other indemnifying party similarly notified, to assume the defense thereofof any such claim or action, with counsel reasonably satisfactory acceptable to such indemnified party (who shall not, except with the consent of the indemnified party; provided, that any indemnified party shall continue to be counsel entitled to the indemnifying party), and, except as provided participate in the next sentencedefense of such claim or action, after notice from the indemnifying party to such indemnified party with counsel of its election to so assume the defense thereofown choice, but the indemnifying party shall not be liable obligated to such reimburse the indemnified party for any legal expenses of other counsel or any other fees, costs and expenses subsequently incurred by such the indemnified party in connection with the such defense thereof other than reasonable costs of investigation. Notwithstanding unless (A) the indemnifying party’s rights party has agreed in the prior sentence, the indemnified party shall have the right writing to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable pay such fees, costs and expenses expenses, (B) the indemnifying party has failed to assume the defense of such separate claim or action within a reasonable time after receipt of notice of such claim or action, (C) having assumed the defense of such claim or action, the indemnifying party fails to employ counsel unless reasonably acceptable to the indemnified party, (iD) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to present such counsel with a conflict of interest in the reasonable judgment of the indemnified party; or (iiE) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have has reasonably concluded upon the advice of counsel that there may be one or more legal or equitable defenses available to it and/or other any other indemnified parties party which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory . Subject to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No foregoing sentence, no indemnifying party shall, in connection with any one claim or action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees fees, costs and expenses of more than one separate (1) firm of attorneys (in addition to any local counsel) for all indemnified parties unless parties. The indemnifying party shall not have the use of only one firm of attorneys would be inappropriate due right to settle a conflict of interest in claim or action for which any indemnified party is entitled to indemnification hereunder without the reasonable judgment consent of the indemnified party. An , and the indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect or enter into or agree to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties settlement relating to such claim or action) , unless such settlement, compromise judgment or consent is consented settlement does not impose any admission of wrongdoing or ongoing obligations on any indemnified party and includes as an unconditional term thereof the giving by the claimant or plaintiff therein to in writing by such indemnifying indemnified party, which consent in form and substance reasonably satisfactory to such indemnified party, of a full and final release from all liability in respect of such claim or action. The indemnifying party shall not be unreasonably withheld liable hereunder for any amount paid or delayed. No indemnifying party, payable or incurred pursuant to or in the defense of connection with any such claim judgment entered or litigation, shall, except settlement effected with the consent of each an indemnified party, consent party unless the indemnifying party has also consented to entry of any such judgment or enter into any settlement (such consent not to be unreasonably withheld, conditioned or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partydelayed).
(d) In If the event that the indemnity indemnification provided for in this Section 5(a) or Section 5(b) above 13 is held by a court of competent jurisdiction to be unavailable to to, or insufficient to hold harmless unenforceable by, an indemnified party with in respect to of any loss, claim, action, damage, liability, liability or expense or action referred to herein, then each the applicable indemnifying party, in lieu of indemnifying such indemnified party agrees to hereunder, shall contribute to the aggregate lossesamount paid or payable by such indemnified party as a result of such loss, claimsclaim, damages and liabilities (includingaction, without limitationdamage, legal liability or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject expense in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party party, on the one hand hand, and of the indemnified party party, on the other hand, in connection with the statements statements, omissions or omissions violations which resulted in such lossesloss, claimsclaim, damages action, damage, liability or liabilities (or actions in respect thereof), expense as well as any other relevant equitable considerations. The relative benefit received by fault of the Company shall be deemed to be equal to indemnifying party, on the total value received or proposed to be received (after deducting expenses) by one hand, and of the Company pursuant to indemnified party, on the sale of Securities in an offeringother hand, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on or by the one hand indemnified party, whether the violation of the Securities Act or any other federal or state securities law or rule or regulation promulgated thereunder applicable to the Company and relating to any action or inaction required of the Company in connection with any registration of securities was perpetrated by the indemnifying party or the indemnified party on the other party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, omission or omissionviolation. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) hereto were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of or allocation which that does not take into account of the equitable considerations referred to above in this Section 5(d13(d). The In no event shall the amount paid or payable which a Holder of Registrable Securities may be obligated to contribute pursuant to this Section 13(d) exceed an amount equal to the net proceeds (after deducting Selling Expenses) actually received by an such Holder in the sale of Registrable Securities that gives rise to such obligation to contribute. No indemnified party as a result guilty or liable of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or “fraudulent misrepresentation (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 fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will 13 shall remain in full force and effect, effect regardless of any investigation made by or on behalf of any Holder indemnified party or any officer, director or Controlling Person of such indemnified party and shall survive the Transfer of any Registrable Securities or the Company or by any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable SecuritiesHolder.
Appears in 2 contracts
Sources: Shareholder Agreement (Riot Blockchain, Inc.), Stock Purchase Agreement (Riot Blockchain, Inc.)
Indemnification; Contribution. (a) The Company agrees shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to indemnify time, indemnify, defend and hold harmless harmless, to the full extent permitted by law, each Holder holder of Registrable Securities, the Affiliatespartners, members, officers, directors, officers, employees, members, managers agents and agents employees of each such Holder and of them, each Person who controls any each such Holder holder (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act), the partners, members, officers, directors, agents and employees of each such controlling person and any financial or investment adviser (each, a “Covered Person”), to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities, expenses actions or proceedings (whether commenced or threatened), costs (including, without limitation, costs of preparation and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities attorneys’ fees) and expenses (or actions in respect thereofincluding expenses of investigation) arise (collectively, “Losses”), as incurred, arising out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed Statement, prospectus or form of prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplements thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, except to the extent that the same arise out of or are based upon information furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and agrees relating to reimburse each such indemnified party, as incurred, for any legal action required of or other expenses reasonably incurred inaction by them the Company in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding)registration; provided, however, provided that the Company will shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any case other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such loss, claim, damage, liability or expense arises (i) Losses arise out of or is are based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity any preliminary prospectus if (i) such Person failed to send or deliver a copy of the prospectus with written information furnished or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (ii) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (iii) the Company has complied with its obligations under Section 5D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any registration statement provided for under this Section 5 is made through underwriters, no action or failure to act on the part of such Holder specifically for inclusion therein including, without limitation, underwriters (whether or not such underwriter is an Affiliate of any notice and questionnaire, or (iiholder of Registrable Securities) out shall affect the obligations of sales the Company to indemnify any holder of Registrable Securities made during a Suspension Period after notice is given or any other Person pursuant to Section 1(f)(ii) hereofthe preceding sentence. This indemnity clause will be in addition If the Public Offering pursuant to any liability which registration statement provided for under this Article 5 is made through underwriters, the Company may otherwise haveagrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 5F 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 any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus.
(b) Each Holder In connection with any Registration Statement in which a holder of Registrable Securities is participating, such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally (and not jointly) agrees , to indemnify indemnify, defend and hold harmless to the Company and each of full extent permitted by law, the Company, its Affiliates, directors, officers, agents and employees, members, managers and agents and each Person who controls the Company (within the meaning of either Section 15 of the Securities Act or and Section 20 of the Exchange Act), to and the fullest extent permitted by applicable lawpartners, members, directors, officers, agents or employees of such controlling persons, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise Losses arising out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretoprospectus, or arise form of prospectus, or arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided that such holder of Registrable Securities shall not be liable in any written such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information relating to expressly for use in such Holder Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveparty.
(c) Promptly after receipt by If any Person shall be entitled to indemnity hereunder (an indemnified “Indemnified Party”), such Indemnified Party shall give prompt notice to the party under this Section 5 of notice or parties from which such indemnity is sought (the “Indemnifying Parties”) of the commencement of any action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which such indemnified party will, if a claim in respect thereof is Indemnified Party seeks indemnification or contribution pursuant hereto; provided that the failure to be made against the indemnifying party under this Section 5, so notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will Indemnifying Parties shall not relieve it the Indemnifying Parties from any obligation or liability under paragraph (a) or (b) above except to the extent that the Indemnifying Parties have been prejudiced by such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) abovefailure. The indemnifying party Indemnifying Parties shall be entitled have the right, exercisable by giving written notice to participate therein andan Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the extent that it shall wishIndemnifying Parties’ expense, jointly with any other indemnifying party similarly notified, to assume the defense thereofof any such Proceeding, with counsel reasonably satisfactory to such indemnified party Indemnified Party; provided that an Indemnified Party or parties (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided if more than one such Indemnified Party is named in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Proceeding) shall have the right to employ its own separate counsel (in any such Proceeding and one local counsel)to participate in the defense thereof, but the indemnified party shall bear the reasonable fees, costs fees and expenses of such separate counsel unless shall be at the expense of such Indemnified Party or parties unless: (i) the use of counsel chosen by the indemnifying party Indemnifying Parties agree to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified partypay such fees and expenses; (ii) the actual Indemnifying Parties fail promptly to assume the defense of such Proceeding or potential defendants in, fail to employ counsel reasonably satisfactory to such Indemnified Party or targets of, parties; or (iii) the named parties to any such action Proceeding (including any impleaded parties) include both the indemnified party such Indemnified Party or parties and the indemnifying party Indemnifying Parties or an Affiliate of the Indemnifying Parties or such Indemnified Parties, and the indemnified party shall have reasonably concluded that there may be legal one or more defenses available to it and/or other indemnified such Indemnified Party or parties which that are different from or additional to those available to the indemnifying party; (iii) Indemnifying Parties, in which case, if such Indemnified Party or parties notifies the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallIndemnifying Parties, the Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one action such Proceeding or separate but substantially similar or related actions Proceedings in the same jurisdiction jurisdiction, arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all indemnified such Indemnified Party or parties. Whether or not such defense is assumed by the Indemnifying Parties, such Indemnifying Parties or Indemnified Party or parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 subject to any indemnified party regarding liability for any settlement made without its or compromise or their consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to but such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayedwithheld). No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, The Indemnifying Parties shall not consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release provides for other than monetary damages without the consent of such indemnified party from all liability on claims that are the subject matter of such proceeding, Indemnified Party or parties (which consent shall not be unreasonably withheld or delayed) or (ii) does not involve include as an unconditional term thereof the imposition giving by the claimant or plaintiff to such Indemnified Party or parties of equitable remedies a release, in form and substance satisfactory to the Indemnified Party or the imposition parties, from all liability in respect of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations Proceeding for which such indemnified party will Indemnified Party would be indemnified hereunder and (iii) does not include any statement as entitled to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyindemnification hereunder.
(d) In If the event that the indemnity indemnification provided for in this Section 5(a) or Section 5(b) above 5F is held by a court of competent jurisdiction to be unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless an indemnified party with for any Losses in respect to any loss, claim, damage, liability, expense or action referred to hereinof which this Section 5F would otherwise apply by its terms, then each applicable Indemnifying Party, in lieu of indemnifying party agrees such Indemnified Party, shall have an obligation to contribute to the aggregate lossesamount paid or payable by such Indemnified Party as a result of such Losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnifying Party, on the one hand hand, and the indemnified party such Indemnified Party, on the other hand, in connection with the actions, statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefit received by fault of such Indemnifying Party, on the Company shall be deemed to be equal to one hand, and Indemnified Party, on the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offeringother hand, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the indemnifying party on the one hand by, such Indemnifying Party or the indemnified party on the other Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 5F(a) or 5F(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d5F(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 5(d5F(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d5F(d), no Person an Indemnifying Party that is a holder of Registrable Securities shall not be required to contribute any amount in excess of the amount by which the net 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 fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 2 contracts
Sources: Securityholders Agreement (Vitamin Shoppe, Inc.), Securityholders Agreement (Vs Holdings, Inc.)
Indemnification; Contribution. (a) The In the event of any registration of any securities of the Company agrees to under the Securities Act, the Company will, and hereby does, indemnify and hold harmless each Holder in the case of Registrable Securitiesany registration statement filed pursuant to Section 2 or 3, the Affiliatesholder of any Registrable Securities covered by such registration statement, directors, its directors and officers, employees, members, managers each officer and agents director of each underwriter, each other person who participates as an underwriter in the offering or sale of such Holder securities and each Person other person, if any, who controls such holder or any such Holder underwriter within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities and expenses, expenses and actions joint or several, to which they such holder or any of them such director or officer or participating or controlling person may become subject under the Securities Act or otherwise, 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 (x) any untrue statement or alleged untrue statement of a any material fact contained in any registration statement under which such 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 Registration Statement as originally filed subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or in any amendment thereof, or the Disclosure Packagesummary prospectus included therein, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the (y) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, or (z) any violation by the Company of any securities laws, and agrees to the Company will reimburse such holder and each such indemnified partydirector, as incurredofficer, 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, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will shall not be liable to any seller, director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in 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 direction of such seller, director, officer, participating person or controlling person for use in the preparation thereof, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or 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 Holder specifically director, officer, participating person or controlling person and shall survive the transfer of such securities by such seller. The Company shall agree to provide for inclusion therein including, without limitation, contribution relating to such indemnity as shall be reasonably requested by any notice and questionnaire, or (ii) out of sales seller of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which or the Company may otherwise haveunderwriters.
(b) Each Holder severally (The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(a), that the Company shall have received an undertaking satisfactory to it from the prospective sellers of such securities and not jointly) agrees their underwriters, to indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 6) the Company, each director of the Company, each officer of the Company who shall sign such registration statement and each of its Affiliatesother person, directorsif any, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, with respect to the fullest extent permitted by applicable lawany statement in or omission from such registration statement, from and against any and all lossespreliminary prospectus, claimsfinal prospectus or summary prospectus included therein, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any if such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any reliance upon and in conformity with written information relating to such Holder furnished to the Company through an instrument duly executed by such sellers or their underwriters specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any such Holder specifically for inclusion thereindirector, including, without limitation, any notice officer or controlling person and questionnaire; provided, however, that shall survive the total amount to be indemnified transfer of such securities by such Holder pursuant sellers. Anything contained herein to this Section 5(b) the contrary notwithstanding, the maximum liability of each prospective seller in the case of each prospective seller shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) actually received by such Holder in prospective seller from the offering to which sale of such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveRegistrable Securities.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any actionaction or proceeding involving a claim 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 not relieve the indemnifying party of its obligations under the preceding subdivisions of this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above 6 except to the extent such action and such failure materially prejudices that the indemnifying party; 's rights are prejudiced, or liabilities and (ii) will notobligations under this Section 6 are increased, in as a result of such failure to give notice. In case any eventsuch action is brought against an indemnified party, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, in and to assume the extent that it shall wishdefense thereof, jointly with any other indemnifying party similarly notified, to assume the defense thereofextent that it may wish, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after . After notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding unless (i) the indemnifying party’s rights in party shall have failed to retain counsel for the prior sentenceindemnified party as aforesaid, (ii) the indemnifying party and the indemnified party shall have mutually agreed to the right to employ its own retention of such counsel or (and one local counsel), but the iii) representation of such indemnified party shall bear by the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen retained by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any differing interests between such action include both the indemnified party and the indemnifying party and any other 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 and/or other indemnified parties which are different from or additional to those available to the indemnifying party; party (iii) in which case the indemnifying party shall not have employed counsel satisfactory the right to direct the defense of such action on behalf of the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party). No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, will consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes does not include as an unconditional release of term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability on claims that are in respect to such claim or litigation. The indemnifying party shall not be liable for any settlement of any proceeding effected without the subject matter written consent of such proceedingindemnifying party (which consent shall not be unreasonably withheld), (ii) does not involve but if settled with such consent or if there be a final judgment for the imposition of equitable remedies or plaintiff, the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnify each indemnified party on the other in connection with the statements from and against any loss or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received liability by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty reason of such fraud settlement or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d)judgment.
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 2 contracts
Sources: Purchase Agreement (Bianco Joseph J), Purchase Agreement (Alliance Entertainment Corp)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless indemnify, to the extent permitted by applicable law, each Holder of Registrable Securities, the Affiliatesits officers, directors, officers, employees, members, managers agents and agents of each such Holder Affiliates and each Person who that controls any such Holder (within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and ) against any and all losses, claims, damages, liabilities, expenses and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise including attorneys’ fees and expenses, and expenses of investigation), arising out of or are based upon resulting from any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any registration statement, prospectus or in any amendment thereof, preliminary prospectus or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred violation or alleged violation by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable of the Securities Act, the Exchange Act, any applicable state securities law (or any rule or regulation promulgated under any applicable state securities law), except insofar as the same are contained in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished in writing to the Company by or on behalf of any such Holder specifically expressly for inclusion use therein includingor by such Holder’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto (to the extent such delivery is required) after the Company has furnished such Holder with a sufficient number of copies of the same. In connection with an Underwritten Offering, without limitationthe Company shall indemnify the underwriters, any notice their officers and questionnaire, or directors and each Person who controls such underwriters (iiwithin the meaning of the Securities Act) out to the same extent as provided above with respect to the indemnification of sales the Holders of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveSecurities.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless To the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from each Holder shall indemnify the Company, its directors, officers, employees, agents and Affiliates and each Person that controls the Company (within the meaning of the Securities Act) against any and all losses, claims, damages or damages, liabilities to which they or any and expenses (including attorneys’ fees and expenses, and expenses of them may become subject insofar as such losses, claims, damages or liabilities arise investigation) arising out of or are based upon resulting from any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed the registration statement, prospectus or in any amendment thereof, preliminary prospectus or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, thereto or arise out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, extent that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to or affidavit so furnished in writing by such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaireHolder; provided, however, provided that the total amount obligation to indemnify shall be indemnified by such individual, not joint and several, for each Holder pursuant to this Section 5(b) and shall be limited to the net amount of proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in from the offering sale of Registrable Securities pursuant to which such Registration Statementregistration statement. In connection with an Underwritten Offering, Disclosure Packageeach Holder shall provide customary indemnification to the underwriters, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any their officers and directors and each Person who controls such Holder may otherwise haveunderwriters (within the meaning of the Securities Act).
(c) Promptly after receipt by an indemnified party under this Section 5 of Any Person entitled to indemnification hereunder shall (i) give prompt written notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but any claim with respect to which it seeks indemnification (provided that the failure so to notify the indemnifying party (i) will give prompt notice shall not relieve it from liability under paragraph (a) or (b) above except impair any Person’s right to indemnification hereunder to the extent such action and such failure has not materially prejudices prejudiced the indemnifying party; ) and (ii) will not, in any event, relieve the permit such indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, of such claim with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but and the indemnified indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel unless if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified partyparty present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and and, based on advice of counsel to the indemnified party, the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which that are different from inconsistent with or additional in addition to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after written notice of the institution of such actionaction has been delivered to the indemnifying party; or (iv) the indemnifying party shall authorize have requested the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless parties. If such defense is assumed, the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 subject to any liability for any settlement made by the indemnified party regarding any settlement or compromise or without its consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to but such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayedwithheld). No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending that does not include as an unconditional term thereof the giving by the claimant or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by plaintiff therein, to such indemnified party, unless such settlement or compromise (i) includes an unconditional of a release of such indemnified party from all liability on claims that are the subject matter in respect of such proceeding, claim or litigation.
(iid) does not involve the imposition of equitable remedies or the imposition The indemnification provided for under this Agreement shall remain in full force and effect regardless of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified partyparty and shall survive the Transfer of Registrable Securities.
(de) In If the event that indemnification required by this Section 6 from the indemnity provided in Section 5(a) or Section 5(b) above indemnifying party is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with hereunder in respect to of any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities or expenses referred to in this Section 6:
(includingi) The indemnifying party, without limitationin lieu of indemnifying such indemnified party, legal shall contribute to the amount paid or other payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale fault of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any violation referred to in this Section 6 has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionviolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6(a) and Section 6(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d6(e) were determined by a pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 5(d6(e)(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no No Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 2 contracts
Sources: Registration Rights Agreement (IMH Financial Corp), Registration Rights Agreement (IMH Financial Corp)
Indemnification; Contribution. (a) The In the event of any registration of any of the Registrable Securities under the Securities Act pursuant to this Agreement, the Company agrees to will indemnify and hold harmless the seller of such Registrable Securities, and its directors and officers, each Holder underwriter of such Registrable Securities, and each other person, if any, who controls such seller or underwriter within the meaning of the Securities Act or the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which such seller, underwriter or controlling person may become subject under the Securities Act, the Exchange Act, state securities or Blue Sky laws or otherwise, in so far as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act, any preliminary prospectus or final prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, and any document incorporated therein by reference or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Company will reimburse such seller, underwriter and each such controlling person for any legal or any other expenses reasonably incurred by such seller, underwriter or controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such Registration Statement, preliminary prospectus or prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by or on behalf of such seller, underwriter or controlling person specifically for use in the preparation thereof. In the event of any registration of any of the Registrable Securities under the Securities Act pursuant to this Agreement, each seller of Registrable Securities, severally and not jointly, will indemnify and hold harmless the AffiliatesCompany, each of its directors, officers, employees, members, managers and agents of each such Holder officers and each Person underwriter (if any) and each person, if any, who controls the Company or any such Holder underwriter within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, damages or liabilities, expenses and actions joint or several, to which they the Company, such directors and officers, underwriters or any of them controlling person may become subject under the Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise, insofar as such losses, claims, damages, damages or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed under which such Registrable Securities were registered under the Securities Act, any preliminary prospectus or final prospectus contained in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretoto the Registration Statement, or arise out of or are based upon the any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not if the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished writing to the Company by or on behalf of such Holder seller, specifically for inclusion thereinuse in connection with the preparation of such Registration Statement, includingprospectus, without limitation, any notice and questionnaireamendment or supplement; provided, however, that the total amount to be indemnified by obligations of such Holder pursuant to this Section 5(b) seller hereunder shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) received by to such Holder in the offering seller from Registrable Securities sold as contemplated herein. Each party entitled to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party Indemnification under this Section 5 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, such indemnified party will, if a claim in respect thereof is to be made against and shall permit the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, Indemnifying Party to assume the defense thereofof any such claim or any litigation resulting therefrom; providing, with that counsel reasonably satisfactory to such indemnified party (for the Indemnifying Party, who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume conduct the defense thereofof such claim or litigation, shall be approved by the indemnifying party Indemnified Party (whose approval shall not be liable unreasonably withheld); and, provided, further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement. The Indemnified Party may participate in such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by defense at such indemnified party in connection with party's expense; provided, however, that the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Indemnifying Party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses pay such expense if representation of such separate counsel unless (i) the use of counsel chosen Indemnified Party by the indemnifying party to represent counsel retained by the indemnified party Indemnifying Party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, differing interests between the Indemnified Party and any other party represented by such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of in such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying partyproceeding. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying partyIndemnifying Party, in the defense of any such claim or litigation, litigation shall, except with the consent of each indemnified partyIndemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or compromise if any pending or threatened proceeding plaintiff to such Indemnified Party of a release from all liability in respect of which any indemnified party is such claim or could have been a party litigation, and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition no Indemnified Party shall consent to entry of any obligations on judgment or settle such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result claim or litigation without the prior written consent of the imposition of financial obligations Indemnifying Party. If the indemnification provided for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above herein is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to hereinIndemnified Party hereunder, then each applicable indemnifying party agrees to Indemnifying Party shall contribute to the aggregate amount paid or payable by such Indemnified Party as a result of the losses, claims, damages and or liabilities (including, without limitation, legal or other expenses reasonably incurred actions or proceedings in connection with investigating or defending samerespect thereof) (collectively, “Losses”) referred to which such indemnifying party may be subject herein in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnifying Party on the one hand and the indemnified party Indemnified Party on the other in connection with the statements statements, omissions, actions, or omissions inactions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if anyliabilities. The relative fault of the Indemnifying Party and the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Indemnifying Party or the indemnified party on the other Indemnified Party, any action or inaction by any such party, and the parties’ ' relative intent, knowledge, access to information information, and opportunity to correct or prevent such statement statement, omission, action, or omissioninaction. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person No person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraud or fraudulent misrepresentation. For purposes Promptly after receipt by an Indemnified Party hereunder of written notice of the commencement of any action, suit, proceeding, investigation, or threat thereof with respect to which a claim for contribution may be made against an Indemnifying Party hereunder, such Indemnified Party shall, if a claim for contribution in respect thereto is to be made against an Indemnifying Party, give written notice to the Indemnifying Party of the commencement thereof (if the notice specified herein has not been given with respect to such action); provided, however, that the failure to so notify the Indemnifying Party shall not relieve it from any obligation to provide contribution which it may have to any Indemnified Party hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to give notice. The parties hereto agree that it would not be just and equitable if contribution pursuant hereto were determined by pro rata allocation or by any other method of allocation which does not take account of equitable considerations referred to herein. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5 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 the immediately preceding paragraph. Notwithstanding the provisions of this Section 5, contribution by any seller of Registerable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registerable Securities pursuant to such Registration Statement. If indemnification is available hereunder, the Indemnifying Parties shall indemnify each Person who controls Indemnified Party to the fullest extent provided herein, without regard to the relative fault of said Indemnifying Party or Indemnified Party or any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of other equitable consideration provided for herein. The provisions hereof shall be in addition to any such Holder, agent or underwriter shall have the same other rights to indemnification or contribution as such Holderwhich any Indemnified Party may have pursuant to law or contract, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, effect regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5Indemnified Party, and will shall survive the transfer of Registrable Securitiessecurities by any such party.
Appears in 2 contracts
Sources: Registration Rights Agreement (Medical Media Television, Inc.), Registration Rights Agreement (Medical Media Television, Inc.)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesTo the extent permitted by law, the AffiliatesCompany will indemnify Commerce, each of its officers, directors, officersmembers and partners, employees, members, managers and agents of each such Holder and each Person person controlling Commerce, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, each director and controlling person of the Company and each officer of the Company who signed the Registration Statement, and each underwriter, if any, and each person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actunderwriter, to the fullest extent permitted by applicable lawagainst all claims, from and against any and all losses, claims, damages, liabilities, expenses damages and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions actions, proceedings or settlements, if such settlements are effected with the written consent of the Company, in respect thereof) arise arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any prospectus, offering circular or in other document (including any amendment thereofrelated registration statement, notification or the Disclosure Packagelike, any amendments or supplements thereto and any documents incorporated by reference therein) incident to any such registration, qualification or compliance, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Packagenot misleading, or any preliminaryviolation by the Company of the Securities Act or the Exchange Act or any other applicable securities laws or other federal, final state or summary Prospectus common law or Free Writing Prospectus included 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 Statement (in light of the circumstances under which they were made) not misleadingregistration, qualification or compliance, and agrees to will reimburse Commerce, each of its officers, directors, members and partners, and each person controlling Commerce, each such indemnified partydirector, as incurredcontrolling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by them in connection with investigating and defending or defending settling any such claim, loss, claim, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any such case to the extent that any such claim, loss, claim, damage, liability or expense arises (i) out of or is based upon on any such untrue statement or alleged untrue statement or omission made in such registration statement, prospectus, offering circular or alleged omission made therein other document in reliance upon and in conformity with written information furnished to the Company by Commerce or such underwriter and stated to be specifically for use therein. Such indemnity obligation shall remain in full force and effect regardless of any investigation made by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice Commerce and questionnaire, or (ii) out of sales shall survive the transfer of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveby Commerce.
(b) Each Holder severally (and not jointly) agrees to To the extent permitted by law, Commerce will indemnify and hold harmless the Company and Company, each of its Affiliates, directors, employeesofficers and controlling persons, members, managers and agents and each Person underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of either the Securities Act or the Exchange ActAct or the rules and regulations thereunder, to the fullest extent permitted by applicable lawagainst all claims, from and against any and all losses, claimsdamages and liabilities (or actions, damages proceedings or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise settlements in respect thereof) arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any such registration statement, prospectus, offering circular or in any amendment thereofother document, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and will reimburse the Company and such directors, officers, members, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, action or proceeding, in each case to the extent, but only to the extent, that any such untrue statement (or alleged untrue statement statement) or omission (or alleged omission omission) is contained made in any such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Holder Commerce and stated to be specifically for inclusion use therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) liability of Commerce hereunder shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) received by Commerce from the sale of Registered Securities as contemplated herein giving rise to such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveliability.
(c) Promptly after receipt by an indemnified Each party entitled to indemnification under this Section 5 of 4 (the “Indemnified Party”) shall give notice of to the commencement party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, such indemnified party will, if a claim in respect thereof is to be made against and shall permit the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, Indemnifying Party to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, unless such settlement, compromise or consent is consented failure to in writing by notify materially adversely affects the Indemnifying Party’s ability to defend such indemnifying party, which consent shall not be unreasonably withheld or delayedaction. No indemnifying partyIndemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partyIndemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or compromise if any pending or threatened proceeding plaintiff to such Indemnified Party of a release from all liability in respect of which 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 the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 4 shall for any indemnified party is reason be unenforceable or could have been a party and indemnity could have been sought hereunder otherwise unavailable by an Indemnified Party, although otherwise available in accordance with its terms, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than Indemnified Party as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) respect to which such indemnifying party may be subject Indemnified Party has claimed indemnification, in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnified Party on the one hand and the indemnified party Indemnifying Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefit received by fault, in the Company shall be deemed to be equal to the total value received case of an untrue statement, alleged untrue statement, omission or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offeringalleged omission, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Indemnifying Party or the indemnified party on the other Indemnified Party, and the such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, alleged statement, omission or alleged omission. The parties Company and Commerce agree that it would not be just and equitable if contribution pursuant hereto were to this Section 5(d) were be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the such equitable considerations referred to above in this Section 5(d)considerations. The amount paid or payable by an indemnified party Indemnified Party as a result of the losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to above in this Section 5(d) herein shall be deemed to include any legal fees, charges or other expenses reasonably incurred by such indemnified party Indemnified Party in connection with investigating or defending against any such action or claimclaim which is the subject hereof. Notwithstanding In no case, however, shall Commerce be responsible for a portion of the provisions contribution obligation in excess of this Section 5(d), no Person the net proceeds received by Commerce from the sale of securities as contemplated herein giving rise to such liability. No person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of Anything to the contrary contained in this Section 5 will remain 4 notwithstanding, Commerce shall not be liable for any indemnification or contribution in full force and effect, regardless excess of the gross proceeds received by it from any investigation made by or on behalf of any Holder sale of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securitieswhich has been registered hereunder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesTo the extent permitted by law, the AffiliatesCompany will indemnify each Holder, each of its officers, directors, officersmembers and partners, employees, members, managers and agents of each such Holder and each Person person controlling such Holder, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, each director and controlling person of the Company and each officer of the Company who signed the registration statement, and each underwriter, if any, and each person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actunderwriter, to the fullest extent permitted by applicable lawagainst all claims, from and against any and all losses, claims, damages, liabilities, expenses damages and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions actions, proceedings or settlements, if such settlements are effected with the written consent of the Company, in respect thereof) arise arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any prospectus, offering circular or in other document (including any amendment thereofrelated registration statement, notification or the Disclosure Packagelike) incident to any such registration, qualification or compliance, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Packagenot misleading, or any preliminary, final violation by the Company of the Securities Act or summary Prospectus the Exchange Act or Free Writing Prospectus included 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 Statement (in light of the circumstances under which they were made) not misleadingregistration, qualification or compliance, and agrees to will reimburse each such indemnified partyHolder, as incurredeach of its officers, directors, members and partners, and each person controlling such Holder, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by them in connection with investigating and defending or defending settling any such claim, loss, claim, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any such case to the extent that any such claim, loss, claim, damage, liability or expense arises (i) out of or is based upon on any such untrue statement or alleged untrue statement or omission made in such registration statement, prospectus, offering circular or alleged omission made therein other document in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder or underwriter and stated to be specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveuse therein.
(b) Each To the extent permitted by law, each Holder severally (and not jointly) agrees will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify and hold harmless the Company and Company, each of its Affiliates, directors, employeesofficers and controlling persons, members, managers and agents and each Person underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of either the Securities Act or the Exchange ActAct or the rules and regulations thereunder, each other such Holder and Other Stockholder (if and to the fullest extent permitted by applicable lawsuch Other Stockholder has agreed to indemnify the Holders as set forth in this clause (b)) including Registrable Securities and other securities in the securities as to which such registration, from qualification or compliance is being effected, and each of their officers, directors, members and partners, and each person controlling such Holder or Other Stockholder, against any and all claims, losses, claimsdamages and liabilities (or actions, damages proceedings or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise settlements in respect thereof) arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any such registration statement, prospectus, offering circular or in any amendment thereofother document, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and will reimburse the Company and such Holders, Other Stockholders, directors, officers, members, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, action or proceeding, in each case to the extent, but only to the extent, that any such untrue statement (or alleged untrue statement statement) or omission (or alleged omission omission) is contained made in any such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Holder and stated to be specifically for inclusion use therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by obligations of each such Holder pursuant to this Section 5(b) hereunder shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) received by to each such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveof securities sold as contemplated herein.
(c) Promptly after receipt by an indemnified Each party entitled to indemnification under this Section 5 of 7 (the “Indemnified Party”) shall give notice of to the commencement party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, such indemnified party will, if a claim in respect thereof is to be made against and shall permit the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, Indemnifying Party to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, unless such settlement, compromise or consent is consented failure to in writing by notify materially adversely affects the Indemnifying Party’s ability to defend such indemnifying party, which consent shall not be unreasonably withheld or delayedaction. No indemnifying partyIndemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partyIndemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or compromise if any pending or threatened proceeding plaintiff to such Indemnified Party of a release from all liability in respect of which 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 the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 7 shall for any indemnified party is reason be unenforceable by an Indemnified Party, although otherwise available in accordance with its terms, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or could have been a party and indemnity could have been sought hereunder payable by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than Indemnified Party as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) respect to which such indemnifying party may be subject Indemnified Party has claimed indemnification, in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnified Party on the one hand and the indemnified party Indemnifying Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefit received by fault, in the Company shall be deemed to be equal to the total value received case of an untrue statement, alleged untrue statement, omission or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offeringalleged omission, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Indemnifying Party or the indemnified party on the other Indemnified Party, and the such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, alleged statement, omission or alleged omission. The parties Company and each Holder agree that it would not be just and equitable if contribution pursuant hereto were to this Section 5(d) were be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the such equitable considerations referred to above in this Section 5(d)considerations. The amount paid or payable by an indemnified party Indemnified Party as a result of the losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to above in this Section 5(d) herein shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party Indemnified Party in connection with investigating or defending against any such action or claimclaim which is the subject hereof. Notwithstanding In no case, however, shall a Holder be responsible for a portion of the provisions contribution obligation in excess of this Section 5(d), no Person the net proceeds to such Holder of securities sold as contemplated herein. No person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of Anything to the contrary contained in this Section 5 will remain 7 notwithstanding, (i) no Holder shall be liable for any indemnification or contribution in full force and effect, regardless excess of the net proceeds received by it from any investigation made by or on behalf of any Holder sale of Registrable Securities or the Company or any which has been registered hereunder and (ii) all indemnification and contribution obligations of the officers, directors or controlling Persons referred to in this Section 5, Holders shall be several and will survive the transfer of Registrable Securitiesnot joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Kenan Advantage Group Inc)
Indemnification; Contribution. (a) The Company agrees agrees:
(i) to indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder Underwriter and each Person person, if any, who controls any such Holder Underwriter within the meaning of either 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, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, expenses and actions damages or liabilities to which they such Underwriter or any of them such controlling person may become subject under the Securities Act or otherwise, 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 untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally filed or in any amendment thereof, or (A) the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus or in any amendment thereof or supplement thereto, (B) any free writing prospectus or arise out of any “issuer information” filed or are based upon required to be filed pursuant to Rule 433(d) under the Securities Act, or (C) any Road Show, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Packagetherein, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) , not misleading, and agrees or (iii) any alleged act or failure to reimburse each such indemnified party, as incurred, for act by any legal or other expenses reasonably incurred by them Underwriter in connection with investigating with, or defending relating in any such manner to, the Securities or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability, expense liability or action arising out of or based upon matters covered by clause (whether i) or not the indemnified party is a party to any proceeding)(ii) above; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage, damage or liability or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement statement, or omission or alleged omission made therein 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) under the Securities Act or any Road Show in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder through the Representative specifically for inclusion therein includinguse in the preparation thereof, without limitationsuch information being the selling concession figure in the first paragraph under the caption “Underwriting—Discounts, any notice Commissions and questionnaireExpenses” and the information set forth under the caption “Underwriting—Price Stabilization, or Short Positions and Penalty Bids” concerning stabilizing transactions, short sales and passive market making in the Preliminary Prospectus and Prospectus (the “Underwriter Information”).
(ii) out 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 loss, claim, damage or liability, action or proceeding or in responding to a subpoena or governmental inquiry related to the offering of sales of Registrable Securities made during the Securities, whether or not such Underwriter or controlling person is a Suspension Period after notice party to any action or proceeding. In the event that it is given finally judicially determined that the Underwriters were not entitled to receive payments for legal and other expenses pursuant to Section 1(f)(ii) hereof. This indemnity clause this subparagraph, the Underwriters will be in addition to any liability which the Company may otherwise havepromptly return all sums that had been advanced pursuant hereto.
(b) Each Holder Underwriter severally (and not jointly) agrees to jointly will indemnify and hold harmless the Company and Company, each of its Affiliates, directors, employees, members, managers and agents each of its officers who have signed the Registration Statement and each Person person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they the Company or any of them such director, officer, or controlling person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, any Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus or in any amendment thereof or supplement thereto, in any free writing prospectus or arise out of or are based upon 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 statements therein (therein, in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) , not misleading; and will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, or controlling person in connection with investigating or defending any such loss, claim, damage, liability, action or proceeding; provided, however, that each Underwriter will be liable in each case to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder has been made in the offering to which such Registration Statement, Disclosure Packageany Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be any amendment or supplement thereto, in addition to any liability which any such Holder may otherwise havefree writing prospectus, or Road Show in reliance upon and in conformity with the Underwriter Information.
(c) Promptly after receipt by an indemnified party under 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 5 of notice of the commencement of any actionSection, such person (the “indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party party”) in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (awriting. No indemnification provided for in Section 8(a) or (b) above except shall be available to any party who shall fail to give notice as provided in this Subsection if the extent party to whom notice was not given was unaware of the proceeding to which such action notice would have related and was materially prejudiced by the failure to give such notice, but the failure materially prejudices the indemnifying party; and (ii) will not, in any event, to give such notice shall not relieve the indemnifying party or parties from any obligations liability which it or they may have to any the indemnified party other for contribution or otherwise than on account of the indemnification obligation provided in paragraph (aprovisions of Section 5(a) or (b) above). The In case any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who and shall not, except with pay as incurred the consent reasonable fees and disbursements of the indemnified party, be such counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party related to such indemnified party of its election to so assume the defense thereofproceeding. In any such proceeding, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ retain its own counsel at its own expense. Notwithstanding the foregoing, the indemnifying party shall pay as incurred (or within 30 days of presentation) the reasonable fees and one local counsel), but expenses of the outside counsel retained by the indemnified party shall bear in the reasonable fees, costs and expenses of such separate counsel unless event (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party; party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (iii) the indemnifying party shall not have employed failed to assume the defense and employ counsel satisfactory reasonably acceptable to the indemnified party to represent the indemnified party within a reasonable period of time after notice of commencement of the institution of such action; or (iv) . It is understood that the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallnot, in connection with any one action or separate but substantially similar proceeding or related actions proceedings in the same jurisdiction arising out of the same general circumstances or allegationsjurisdiction, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local outside counsel) for all such indemnified parties unless the use of only one parties. Such firm of attorneys would shall be inappropriate due to a conflict of interest designated in writing by you in the reasonable judgment case of parties indemnified pursuant to Section 5(a) and by the Company in the case of parties indemnified partypursuant to Section 5(b). An The indemnifying party shall not be liable under this Section 5 for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to any indemnify the indemnified party regarding from and against any loss or liability by reason of such settlement or judgment. In addition, the indemnifying party will not, without the prior written consent of the indemnified party, settle or compromise or consent to the entry of any judgment with respect to in any pending or threatened claim, action, suit action or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the any indemnified parties are party is an actual or potential parties party to such claim claim, action or actionproceeding) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such each indemnified party from all liability on claims that are the subject matter arising out of such claim, action or proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In If the event that the indemnity indemnification provided for in this Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with under Section 5(a) or (b) above in respect to of any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and or liabilities (includingor actions or proceedings in respect thereof) referred to therein, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such then each indemnifying party may be subject shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions 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 applicable, and is appropriate to reflect not only such relative benefits but also the relative fault of the indemnifying party Company on the one hand and the indemnified party Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities liabilities, (or actions or proceedings in respect thereof), as well as any other relevant equitable considerations. The relative benefit benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be equal in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit underwriting discounts and commissions received by the Holders shall be deemed to be equal to Underwriters, in each case as set forth in the total value received or proposed to be received (after deducting expenses) by table on the Holders cover page of Securities in an offering, if anythe Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Issuer on the one hand or the indemnified party Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties Company and the Underwriters agree that it would not be just and equitable if contribution contributions pursuant to this Section 5(d) Subsection were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them 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 Section 5(d)Subsection. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred to above in this Section 5(d) Subsection shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d)Subsection, (i) no Person 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) no person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of The Underwriters’ obligations in this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act Subsection to contribute are several in proportion to their respective underwriting obligations and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d)not joint.
(e) The provisions 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 5 will hereby 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 party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The indemnity and contribution agreements contained in this Section and the representations and warranties of the Company set forth in this Agreement shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Holder of Registrable Securities or the Company Underwriter or any person controlling any Underwriter, the Company, its directors or officers or any persons controlling the Company, (ii) acceptance of any Securities and payment therefor hereunder, and (iii) any termination of this Agreement. A successor to any Underwriter, or to the Company, its directors or officers, or any person controlling the Company, shall be entitled to the benefits of the officersindemnity, directors or controlling Persons referred to contribution and reimbursement agreements contained in this Section 5, and will survive the transfer of Registrable SecuritiesSection.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to In the event of any registration of any equity securities of the Corporation under the Securities Act or applicable Canadian securities Laws, the Corporation will, and hereby does agree to, indemnify and hold harmless each Holder harmless, in the case of Registrable Securitiesany registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, the Affiliatesseller of any Registrable Shares covered by such registration statement or prospectus, directors, its respective directors and officers, employees, partners and members, managers and agents each other Person who participates as an underwriter in the offering or sale of each such Holder securities, and each Person other Person, if any, who controls such seller or any such Holder underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities and expenses, expenses and actions to which they or any of them may become subject under the Securities Act, applicable Canadian securities Laws or otherwise, 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 untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally any registration statement or prospectus under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus included therein or filed or in any amendment thereof, or the Disclosure Packagewith applicable Canadian securities regulatory authorities, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will Corporation shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises (i) out of or is based upon any such (x) an untrue statement or alleged untrue statement or omission or alleged omission made therein 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 Company Corporation for use in the preparation thereof by such seller or on behalf of any such Holder specifically for inclusion therein includingunderwriter, without limitation, any notice and questionnaireas the case may be, or (iiy) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such an untrue statement or alleged untrue statement or omission or alleged omission is contained made in any written information relating preliminary prospectus but notified to such Holder furnished seller and underwriter prior to any sale or other disposition of Registrable Shares and subsequently corrected by the Company by Corporation in any final prospectus, amendment or on behalf of supplement made available to such Holder specifically for inclusion thereinseller or underwriter but which final prospectus, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified amendment or supplement was not used by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder seller or underwriter in the offering sale or other disposition of Registrable Shares that gave rise to which such Registration Statementloss, Disclosure Packageclaim, Prospectus damage, liability (or Holder Free Writing Prospectus relatesaction or proceeding in respect thereof) or expense. This indemnity clause will shall be in addition to any liability which any such Holder the Corporation may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 1 contract
Sources: Registration Rights Agreement (Odyssey Re Holdings Corp)
Indemnification; Contribution. (a) The In the event of any registration of any securities of the Company agrees to under the Securities Act, the Company will, and hereby does, indemnify and hold harmless each Holder in the case of Registrable Securitiesany registration statement filed pursuant to Section 2, 3 or 4 hereof, the Affiliatesholder of any Registrable Securities covered by such registration statement, directors, its directors and officers, employees, members, managers each officer and agents director of each underwriter, each other person who participates as an underwriter in the offering or sale of such Holder securities and each Person other person, if any, who controls such holder or any such Holder underwriter within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities and expenses, expenses and actions joint or several, to which they such holder or any of them such director or officer or participating or controlling person may become subject under the Securities Act or otherwise, 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 (x) any untrue statement or alleged untrue statement of a any material fact contained in any registration statement under which such 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 Registration Statement as originally filed subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or in any amendment thereof, or the Disclosure Packagesummary prospectus included therein, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the (y) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, or (z) any violation by the Company of any securities laws in connection with such registration, and agrees to the Company will reimburse such holder and each such indemnified partydirector, as incurredofficer, 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, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will shall not be liable to any seller, director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in 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 direction of such seller, director, officer, participating person or controlling person for use in the preparation of such documents, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or 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 Holder specifically director, officer, participating person or controlling person and shall survive the transfer of such securities by such seller. The Company shall agree to provide for inclusion therein including, without limitation, contribution relating to such indemnity as shall be reasonably requested by any notice and questionnaire, or (ii) out of sales seller of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which or the Company may otherwise haveunderwriters.
(b) Each Holder severally (The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(a), that the Company shall have received an undertaking satisfactory to it from the prospective sellers of such securities and not jointly) agrees their underwriters, to indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 7) the Company, each director of the Company, each officer of the Company who shall sign such registration statement and each of its Affiliatesother person, directorsif any, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, with respect to the fullest extent permitted by applicable lawany statement in or omission from such registration statement, from and against any and all lossespreliminary prospectus, claimsfinal prospectus or summary prospectus included therein, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any if such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any reliance upon and in conformity with written information relating to such Holder furnished to the Company through an instrument prepared by or under the direction of such sellers or their underwriters specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, and provided that (i) the obligation to provide indemnification pursuant to this Section 7(b) shall be several, and not joint and several, among such sellers and (ii) the liability of each seller hereunder shall be limited to the proportion of any such loss, claim, damage, liability or expense which is equal to the proportion that the public offering price of the shares sold by such seller under such registration statement bears to the total public offering price of all securities sold thereunder, but not in any event to exceed the net proceeds received by such seller 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 Holder specifically for inclusion thereindirector, including, without limitation, any notice officer or controlling person and questionnaire; provided, however, that shall survive the total amount to be indemnified transfer of such securities by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise havesellers.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any actionaction or proceeding involving a claim referred to in the preceding subdivisions of this Section 7, 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 not relieve the indemnifying party of its obligations under the preceding subdivisions of this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above 7 except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve that the indemnifying party from is materially prejudiced as a result of such failure to give notice. In case any obligations to any such action is brought against an indemnified party other than party, the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, in and to assume the extent that it shall wishdefense thereof, jointly with any other indemnifying party similarly notified, to assume the defense thereofextent that it may wish, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after . After notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding unless (i) the indemnifying party’s rights in party shall have failed to retain counsel for the prior sentencedefense of such claim(s) as aforesaid, (ii) the indemnifying party and the indemnified party shall have mutually agreed to the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses retention of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of for the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; party (iii) in which case the indemnifying party shall not have employed counsel satisfactory the right to direct the defense of such action on behalf of the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such actionparty); or (iv) provided, however, in no event shall the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and reasonable expenses of more than one separate firm of attorneys (in addition to any local counsel) counsel for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayedparties. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, party 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 compromise if any pending or threatened proceeding plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. The indemnifying party shall not be liable for any settlement of which any proceeding effected without the written consent of such indemnifying party, such consent not to be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify each indemnified party is from and against any loss or could have been a party and indemnity could have been sought hereunder liability by such indemnified party, unless reason of such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyjudgment.
(d) In Indemnification similar to that specified in this Section 7 (with appropriate modifications) shall be given by the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court Company and each seller of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party Registrable Securities with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal required registration or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which qualification of such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities under any federal or any agents state law or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d)regulation.
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless indemnify, to the extent permitted by law, each Holder holder of Registrable Securities, the Affiliatesits officers, directors, officerspartners, trustees, members, managers, employees, membersadvisors, managers and agents of each such Holder and each Person who that controls any such Holder holder (within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and ) against any and all losses, claims, damages, liabilities, expenses and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses, including attorneys’ fees and disbursements and expenses (or actions in respect thereof) arise out of or are based upon investigation, resulting from any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed any registration statement, prospectus or in any amendment thereof, preliminary prospectus or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred violation or alleged violation by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable 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, except insofar as the same are caused by or contained in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished in writing to the Company by such holder expressly for use therein or on behalf by such holder’s failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such Holder specifically for inclusion therein includingholder with a sufficient number of copies of the same. In connection with an underwritten offering, without limitationthe Company shall indemnify such underwriters, any notice their officers and questionnaire, or directors and each Person who controls such underwriters (iiwithin the meaning of the Securities Act) out to the same extent as provided above with respect to the indemnification of sales the holders of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveSecurities.
(b) Each Holder severally (and not jointly) agrees In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder shall furnish to indemnify and hold harmless the Company in writing such information and each of affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by law, shall indemnify the Company, its Affiliatesdirectors, directorsofficers, employees, members, managers agents and agents Affiliates and each Person who controls the Company (within the meaning of either the Securities Act or and the Exchange Act, to the fullest extent permitted by applicable law, from and ) against any and all losses, claims, damages or damages, liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon and expenses resulting from any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed the registration statement, prospectus or in any amendment thereof, preliminary prospectus or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, thereto or arise out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, extent that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to writing furnished by such Holder furnished to the Company by holder for use in such registration statement, prospectus or on behalf of such Holder specifically for inclusion therein, including, without limitation, preliminary prospectus or any notice and questionnaireamendment or supplement thereto; provided, however, provided that the total amount obligation to indemnify shall be indemnified by such Holder pursuant to this Section 5(b) individual, not joint and several, for each holder and shall be limited to the net amount of proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in holder from the offering sale of Registrable Securities pursuant to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveregistration statement.
(c) Promptly after receipt by an indemnified party under this Section 5 of Any Person entitled to indemnification hereunder shall (i) give prompt written notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but any claim with respect to which it seeks indemnification (provided that the failure so to notify the indemnifying party (i) will give prompt notice shall not relieve it from liability under paragraph (a) or (b) above except impair any Person’s right to indemnification hereunder to the extent such action and such failure materially prejudices has not prejudiced the indemnifying party; ) and (ii) will not, unless in any event, relieve such indemnified party’s reasonable judgment (x) a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim or (y) such indemnified party has one or more defenses to such claim that are not available to the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The party, permit such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, of such claim with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party. If such defense is assumed, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to shall not settle such claim unless the indemnified party is released and discharged of its election to so assume the any liability. Whether or not such defense thereofis assumed, the indemnifying party shall not be liable subject to such indemnified party any liability for any legal expenses of other counsel or any other expenses subsequently incurred settlement made by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party without its consent (but such consent shall have the right to employ its own counsel (and one local counselnot be unreasonably withheld), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the . An indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants inwho is not entitled to, or targets ofelects not to, any such action include both assume the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party defense of a claim shall not have employed counsel satisfactory be obligated to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) counsel for all parties indemnified parties unless by such indemnifying party with respect to such claim, except to the use of only one firm of attorneys would be inappropriate due to a conflict of interest extent that in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding a conflict of interest may exist between such indemnified party and any settlement or compromise or consent to the entry other of any judgment such indemnified parties with respect to any pending or threatened such claim, action, suit or proceeding .
(d) The indemnification provided for under this Agreement shall remain in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense full force and effect regardless of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified partyparty and shall survive the transfer of securities.
(de) In If the event that indemnification required by this Section 6 from the indemnity provided in Section 5(a) or Section 5(b) above indemnifying party is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with hereunder in respect to of any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities or expenses referred to in this Section 6:
(includingi) The indemnifying party, without limitationin lieu of indemnifying such indemnified party, legal shall contribute to the amount paid or other payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale fault of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionviolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6(a) and Section 6(b), any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d6(e) were determined solely by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 5(d6(e)(i). The amount paid or payable by an indemnified party as a result ; provided, however, that with respect to any pro rata allocation, the holders of the losses, claims, damages or liabilities (or actions Registrable Securities included in respect thereof) referred to above in this Section 5(d) any such registration shall be deemed to include any legal or other expenses reasonably incurred by have only received the net proceeds from such indemnified party holders’ sales of Registrable Securities in connection with investigating or defending any such action or claimregistration. Notwithstanding the provisions of this Section 5(d), no No Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to In the event of any registration of any equity securities of the Corporation under the Securities Act or applicable Canadian securities Laws, the Corporation will, and hereby does agree to, indemnify and hold harmless each Holder harmless, in the case of Registrable Securitiesany registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, the Affiliatesseller of any Registrable Shares covered by such registration statement or prospectus, directors, its respective directors and officers, employees, partners and members, managers and agents each other Person who participates as an underwriter in the offering or sale of each such Holder securities, and each Person other Person, if any, who controls such seller or any such Holder underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities and expenses, expenses and actions to which they or any of them may become subject under the Securities Act, applicable Canadian securities Laws or otherwise, 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 untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally any registration statement or prospectus under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus included therein or filed or in any amendment thereof, or the Disclosure Packagewith applicable Canadian securities regulatory authorities, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will Corporation shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises (i) out of or is based upon any such (x) an untrue statement or alleged untrue statement or omission or alleged omission made therein 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 Company Corporation for use in the preparation thereof by such seller or on behalf of any such Holder specifically for inclusion therein includingunderwriter, without limitation, any notice and questionnaireas the case may be, or (iiy) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such an untrue statement or alleged untrue statement or omission or alleged omission is contained made in any written information relating preliminary prospectus but notified to such Holder furnished seller and underwriter prior to any sale or other disposition of Registrable Shares and subsequently corrected by the Company 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 Holder specifically for inclusion thereinseller or any such director or officer, includingunderwriter or controlling Person and shall survive the transfer of such securities by such seller.
(b) The Corporation may require, without limitationas a condition to including any Registrable Shares in any registration statement or prospectus filed pursuant to Section 2, any notice and questionnaire; provided, however3 or 4 hereof, that the total 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 to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to 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 (after deducting underwriters’ discounts ii) each such underwriter of such securities, to indemnify and commissionshold harmless (in the same manner and to the same extent as set forth in Section 9(a) received 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 Holder prospective seller or such underwriter, as the case may be, to the Corporation for use in the offering to which preparation of such Registration Statementregistration statement, Disclosure Packagepreliminary prospectus, Prospectus final prospectus, amendment or Holder Free Writing Prospectus relatessupplement. This Such indemnity clause will be shall remain in addition to full force and effect regardless of any liability which investigation made by or on behalf of the Corporation or any such Holder may otherwise havedirector, officer or controlling Person and shall survive the transfer of such securities by such seller.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any actionaction or proceeding (including any governmental investigation) involving a claim referred to in either Section 9(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 not relieve the indemnifying party of its obligations under the preceding provisions of this Section 59, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve that the indemnifying party from is materially prejudiced by such failure to give notice. In case any obligations to any such action is brought against an indemnified party other than party, the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to assume the extent that it shall wishdefense thereof, jointly with any other indemnifying party similarly notified, to assume the defense thereofextent that it may wish, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, and after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the indemnifying party shall will not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such the indemnified party in connection with the defense thereof other than reasonable costs of investigationthereof. Notwithstanding the indemnifying party’s rights If, in the prior sentenceindemnified party's reasonable judgment, a conflict of interest between such indemnified party and indemnifying parties may exist in respect of such claim, the indemnified party shall have the right be entitled to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest participate in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party defense thereof and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) counsel for all indemnified parties unless sellers of Registrable Shares, or more than one counsel for the use of only underwriters in connection with any one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement action or compromise separate but similar or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyrelated actions.
(d) In If the event that indemnification provided for in the indemnity provided in foregoing clauses (a), (b) and (c) of this Section 5(a) or Section 5(b) above 9 is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an the indemnified party with parties in respect to of any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and or liabilities referred to therein, then each indemnifying party shall contribute to the amounts paid or payable by such indemnified parties as a result of such losses, claims, damages or liabilities (includingi) as between the Corporation and the holders of Registrable Shares covered by a registration statement, without limitationon the one hand, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectivelyand the underwriters, “Losses”) to which such indemnifying party may be subject 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 SecuritiesRegistrable Shares, or if such allocation is not permitted by applicable law, in such proportion as applicable, and is appropriate to reflect not only the relative benefits but also the relative fault of the indemnifying party Corporation and such holders, on the one hand hand, and of the indemnified party underwriters, on the other other, in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities 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 actions prospectus, on the other, in respect thereof)such proportion as is appropriate to reflect the relative fault of the Corporation and of each such holder in connection with such statements or omissions, as well as any other relevant equitable considerations. The relative benefit benefits received by the Company Corporation and such holders, on the one hand, and the underwriters, on the other, shall be deemed to be equal 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 value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit underwriting discounts and commissions received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if anyunderwriters. The relative fault of the Corporation and such holders, on the one hand, and of the underwriters, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Corporation and such holders or by the underwriters. The relative fault of the Corporation, on the one hand or the indemnified party hand, and of each such holder, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact relates to information supplied by such party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. .
(e) The parties Corporation and the holders of Registrable Shares agree that it would not be just and equitable if contribution pursuant to this Section 5(d9(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(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 claimnext preceding paragraph. Notwithstanding the provisions of this Section 5(d9(d), no Person 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 guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraud or fraudulent misrepresentation. For purposes The obligation of the holders of Registrable Shares to contribute pursuant to this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within 9 is several in the meaning of either proportion that the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director proceeds of the Company shall have the same rights to contribution as the Company, subject in each case offering received by such holder bears to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any total proceeds of the officers, directors or controlling Persons referred to in this Section 5, offering received by all Holders and will survive the transfer of Registrable Securitiesnot joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Fairfax Financial Holdings LTD/ Can)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesTo the extent permitted by law, the AffiliatesCompany will indemnify each Holder, each of its officers, directors, officersmembers and partners, employees, members, managers and agents of each such Holder and each Person person controlling such Holder, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, each director and controlling person of the Company and each officer of the Company who signed the registration statement, and each underwriter, if any, and each person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actunderwriter, to the fullest extent permitted by applicable lawagainst all claims, from and against any and all losses, claims, damages, liabilities, expenses damages and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions actions, proceedings or settlements, if such settlements are effected with the written consent of the Company, in respect thereof) arise arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any prospectus, offering circular or in other document (including any amendment thereofrelated registration statement, notification or the Disclosure Packagelike) incident to any such registration, qualification or compliance, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Packagenot misleading, or any preliminary, final violation by the Company of the Securities Act or summary Prospectus the Exchange Act or Free Writing Prospectus included 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 Statement (in light of the circumstances under which they were made) not misleadingregistration, qualification or compliance, and agrees to will reimburse each such indemnified partyHolder, as incurredeach of its officers, directors, members and partners, and each person controlling such Holder, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by them in connection with investigating and defending or defending settling any such claim, loss, claim, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any such case to the extent that any such claim, loss, claim, damage, liability or expense arises (i) out of or is based upon on any such untrue statement or alleged untrue statement or omission made in such registration statement, prospectus, offering circular or alleged omission made therein other document in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder or underwriter and stated to be specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveuse therein.
(b) Each To the extent permitted by law, each Holder severally (and not jointly) agrees will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify and hold harmless the Company and Company, each of its Affiliates, directors, employeesofficers and controlling persons, members, managers and agents and each Person underwriter, if any, of the Company's securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of either the Securities Act or the Exchange ActAct or the rules and regulations thereunder, each other such Holder and Other Stockholder (if and to the fullest extent permitted by applicable lawsuch Other Stockholder has agreed to indemnify the Holders as set forth in this clause (b)) including Registrable Securities and other securities in the securities as to which such registration, from qualification or compliance is being effected, and each of their officers, directors, members and partners, and each person controlling such Holder or Other Stockholder, against any and all claims, losses, claimsdamages and liabilities (or actions, damages proceedings or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise settlements in respect thereof) arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any such registration statement, prospectus, offering circular or in any amendment thereofother document, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and will reimburse the Company and such Holders, Other Stockholders, directors, officers, members, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, action or proceeding, in each case to the extent, but only to the extent, that any such untrue statement (or alleged untrue statement statement) or omission (or alleged omission omission) is contained made in any such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Holder and stated to be specifically for inclusion use therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by obligations of each such Holder pursuant to this Section 5(b) hereunder shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) received by to each such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveof securities sold as contemplated herein.
(c) Promptly after receipt by an indemnified Each party entitled to indemnification under this Section 5 of 7 (the "Indemnified Party") shall give notice of to the commencement party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, such indemnified party will, if a claim in respect thereof is to be made against and shall permit the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, Indemnifying Party to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, unless such settlement, compromise or consent is consented failure to in writing by notify materially adversely affects the Indemnifying Party's ability to defend such indemnifying party, which consent shall not be unreasonably withheld or delayedaction. No indemnifying partyIndemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partyIndemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or compromise if any pending or threatened proceeding plaintiff to such Indemnified Party of a release from all liability in respect of which 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 the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 7 shall for any indemnified party is reason be unenforceable by an Indemnified Party, although otherwise available in accordance with its terms, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or could have been a party and indemnity could have been sought hereunder payable by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than Indemnified Party as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) respect to which such indemnifying party may be subject Indemnified Party has claimed indemnification, in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnified Party on the one hand and the indemnified party Indemnifying Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefit received by fault, in the Company shall be deemed to be equal to the total value received case of an untrue statement, alleged untrue statement, omission or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offeringalleged omission, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Indemnifying Party or the indemnified party on the other Indemnified Party, and the such parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, alleged statement, omission or alleged omission. The parties Company and each Holder agree that it would not be just and equitable if contribution pursuant hereto were to this Section 5(d) were be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the such equitable considerations referred to above in this Section 5(d)considerations. The amount paid or payable by an indemnified party Indemnified Party as a result of the losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to above in this Section 5(d) herein shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party Indemnified Party in connection with investigating or defending against any such action or claimclaim which is the subject hereof. Notwithstanding In no case, however, shall a Holder be responsible for a portion of the provisions contribution obligation in excess of this Section 5(d), no Person the net proceeds to such Holder of securities sold as contemplated herein. No person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of Anything to the contrary contained in this Section 5 will remain 7 notwithstanding, no Holder shall be liable for any indemnification or contribution in full force and effect, regardless excess of the net proceeds received by it from any investigation made by or on behalf of any Holder sale of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securitieswhich has been registered hereunder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to indemnify time, indemnify, defend and hold harmless harmless, to the full extent permitted by Law, each Holder holder of Registrable Securities, the Affiliatespartners, members, officers, directors, officers, employees, members, managers agents and agents employees of each such Holder and of them, each Person who controls any each such Holder holder (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act), the partners, members, officers, directors, agents and employees of each such controlling person and any financial or investment adviser (each, a “Covered Person”), to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities, expenses actions or proceedings (whether commenced or threatened), costs (including, without limitation, costs of preparation and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities attorneys’ fees) and expenses (or actions in respect thereofincluding expenses of investigation) arise (collectively, “Losses”), as incurred, arising out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed Statement, prospectus or form of prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplements thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, except to the extent that the same arise out of or are based upon information furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and agrees relating to reimburse each such indemnified party, as incurred, for any legal action required of or other expenses reasonably incurred inaction by them the Company in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding)registration; provided, however, that the Company will shall not be liable to any Person who participates as an underwriter (other than solely due to such Person’s status as an control person of the Company) in the offering or sale of Registrable Securities or any case other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such loss, claim, damage, liability or expense arises (i) Losses arise out of or is are based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity any preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with written information furnished or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission and (C) the Company has complied with its obligations under Section 3D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any Registration Statement provided for under this Section 3 is made through underwriters, (x) no action or failure to act on the part of such Holder specifically for inclusion therein including, without limitation, underwriters (whether or not such underwriter is an Affiliate of any notice and questionnaire, or (iiholder of Registrable Securities) out shall affect the obligations of sales the Company to indemnify any holder of Registrable Securities made during a Suspension Period after notice is given or any other Person pursuant to Section 1(f)(iithe preceding sentence and (y) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveagrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 3F 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 any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus.
(b) Each Holder In connection with any Registration Statement in which a holder of Registrable Securities is participating, such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally (and not jointly) agrees , to indemnify indemnify, defend and hold harmless to the Company and each of full extent permitted by Law, the Company, its Affiliates, directors, officers, agents and employees, members, managers and agents and each Person who controls the Company (within the meaning of either Section 15 of the Securities Act or and Section 20 of the Exchange Act), to and the fullest extent permitted by applicable lawpartners, members, directors, officers, agents or employees of such controlling persons, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise Losses arising out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretoprospectus, or arise form of prospectus, or arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, that such holder of Registrable Securities shall not be liable in any written such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information relating to expressly for use in such Holder Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveparty.
(c) Promptly after receipt by If any Person shall be entitled to indemnity hereunder (an indemnified “Indemnified Party”), such Indemnified Party shall give prompt notice to the party under this Section 5 of notice or parties from which such indemnity is sought (the “Indemnifying Parties”) of the commencement of any action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which such indemnified party willIndemnified Party seeks indemnification or contribution pursuant hereto; provided, if a claim in respect thereof is that the failure to be made against the indemnifying party under this Section 5, so notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will Indemnifying Parties shall not relieve it the Indemnifying Parties from any obligation or liability under paragraph (a) or (b) above except to the extent that the Indemnifying Parties have been prejudiced by such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) abovefailure. The indemnifying party Indemnifying Parties shall be entitled have the right, exercisable by giving written notice to participate therein andan Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the extent that it shall wishIndemnifying Parties’ expense, jointly with any other indemnifying party similarly notified, to assume the defense thereofof any such Proceeding, with counsel reasonably satisfactory to such indemnified party Indemnified Party; provided, that an Indemnified Party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided if more than one such Indemnified Party is named in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Proceeding) shall have the right to employ its own separate counsel (in any such Proceeding and one local counsel)to participate in the defense thereof, but the indemnified party shall bear the reasonable fees, costs fees and expenses of such separate counsel unless shall be at the expense of such Indemnified Party or parties unless: (i) the use of counsel chosen by the indemnifying party Indemnifying Parties agree to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified partypay such fees and expenses; (ii) the actual Indemnifying Parties fail promptly to assume the defense of such Proceeding or potential defendants in, fail to employ counsel reasonably satisfactory to such Indemnified Party or targets of, parties; or (iii) the named parties to any such action Proceeding (including any impleaded parties) include both the indemnified party such Indemnified Party or parties and the indemnifying party Indemnifying Parties or an Affiliate of the Indemnifying Parties or such Indemnified Parties, and the indemnified party shall have reasonably concluded that there may be legal one or more defenses available to it and/or other indemnified parties which such Indemnified Party that are different from or additional to those available to the indemnifying party; (iii) Indemnifying Parties, in which case, if such Indemnified Party notifies the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallIndemnifying Parties; the Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one action such Proceeding or separate but substantially similar or related actions Proceedings in the same jurisdiction jurisdiction, arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any plus appropriate local counsel) at any time for all indemnified parties unless such Indemnified Party. Whether or not such defense is assumed by the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party Indemnifying Parties, such Indemnifying Parties or Indemnified Party shall not be liable under this Section 5 subject to any indemnified party regarding liability for any settlement made without its or compromise or their consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to but such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be he unreasonably withheld or delayed). No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, The Indemnifying Parties shall not consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (ix) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, provides for other than as a result monetary damages without the consent of the imposition of financial obligations for Indemnified Party (which such indemnified party will consent shall not be indemnified hereunder and unreasonably withheld or delayed) or (iiiy) does not include any statement as an unconditional term thereof the giving by the claimant or plaintiff to or any admission such Indemnified Party of faulta release, culpability or a failure in form and substance satisfactory to act by or on behalf the Indemnified Party, from all liability in respect of any indemnified partysuch Proceeding for which such Indemnified Party would be entitled to indemnification hereunder.
(d) In If the event that the indemnity indemnification provided for in this Section 5(a) or Section 5(b) above 3F is held by a court of competent jurisdiction to be unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless an indemnified party with for any Losses in respect to any loss, claim, damage, liability, expense or action referred to hereinof which this Section 3F would otherwise apply by its terms, then each applicable Indemnifying Party, in lieu of indemnifying party agrees such Indemnified Party, shall have an obligation to contribute to the aggregate lossesamount paid or payable by such Indemnified Party as a result of such Losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnifying Party, on the one hand hand, and the indemnified party such Indemnified Party, on the other hand, in connection with the actions, statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefit received by fault of such Indemnifying Party, on the Company shall be deemed to be equal to one hand, and Indemnified Party, on the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offeringother hand, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the indemnifying party on the one hand by, such Indemnifying Party or the indemnified party on the other Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 3F(a) or 3F(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d3F(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 5(d3F(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d3F(d), no Person an Indemnifying Party that is a holder of Registrable Securities shall not be required to contribute any amount in excess of the amount by which the net 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 fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes 3G Rules 144 and 144A. The Company shall file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder and shall take such further action as any holder of this Section 5Registrable Securities may reasonably request, each Person who controls all to the extent required from time to time to enable such holder to sell (subject to any Holder restrictions on Transfers hereunder) Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 and Rule 144A. Upon the request of any holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights deliver to contribution such holder a written statement as the Company, subject in each case to the applicable terms and conditions of this Section 5(d)whether it has complied with such requirements.
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 1 contract
Indemnification; Contribution. (a) The In the event of any registration of any securities of the Company agrees to under the Securities Act, the Company will, and hereby does, indemnify and hold harmless each Holder in the case of Registrable Securitiesany registration statement filed pursuant to Section 2, 3 or 4 hereof, the Affiliatesholder of any Registrable Securities covered by such registration statement, directors, its directors and officers, employees, members, managers each officer and agents director of each underwriter, each other person who participates as an underwriter in the offering or sale of such Holder securities and each Person other person, if any, who controls such holder or any such Holder underwriter within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities and expenses, expenses and actions joint or several, to which they such holder or any of them such director or officer or participating or controlling person may become subject under the Securities Act or otherwise, 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 (x) any untrue statement or alleged untrue statement of a any material fact contained in any registration statement under which such 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 Registration Statement as originally filed subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or in any amendment thereof, or the Disclosure Packagesummary prospectus included therein, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the (y) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, or (z) any violation by the Company of any securities laws in connection with such registration, and agrees to the Company will reimburse such holder and each such indemnified partydirector, as incurredofficer, 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, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will shall not be liable to any seller, director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in 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 on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which under the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf direction of such Holder specifically for inclusion thereinseller, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent participating person or controlling person for use in the preparation of any such Holderdocuments, agent which information was specifically stated to be for use in the registration statement, prospectus, offering circular or underwriter other document. Such indemnity shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, effect regardless of any investigation made by or on behalf of such seller or any Holder such director, officer, participating person or controlling person and shall survive the transfer of such securities by such seller. The Company shall agree to provide for contribution relating to such indemnity as shall be reasonably requested by any seller of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securitiesunderwriters.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesTo the extent permitted by law, the AffiliatesCompany will indemnify Permatec, each of its officers, directors, officersmembers and partners, employees, members, managers and agents of each such Holder and each Person person controlling Permatec, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, each director and controlling person of the Company and each officer of the Company who signed the registration statement, and each underwriter, if any, and each person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actunderwriter, to the fullest extent permitted by applicable lawagainst all claims, from and against any and all losses, claims, damages, liabilities, expenses damages and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions actions, proceedings or settlements, if such settlements are effected with the written consent of the Company, in respect thereof) arise arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any prospectus, offering circular or in other document (including any amendment thereofrelated registration statement, notification or the Disclosure Packagelike) incident to any such registration, qualification or compliance, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Packagenot misleading, or any preliminary, final violation by the Company of the Securities Act or summary Prospectus the Securities Exchange Act of 1934 (the "Exchange Act") or Free Writing Prospectus included 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 Statement (in light of the circumstances under which they were made) not misleadingregistration, qualification or compliance, and agrees to will reimburse Permatec, each of its officers, directors, members and partners, and each person controlling Permatec, each such indemnified partydirector, as incurredcontrolling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by them in connection with investigating and defending or defending settling any such claim, loss, claim, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any such case to the extent that any such claim, loss, claim, damage, liability or expense arises (i) out of or is based upon on any such untrue statement or alleged untrue statement or omission made in such registration statement, prospectus, offering circular or alleged omission made therein other document in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder Permatec and stated to be specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveuse therein.
(b) Each Holder severally (To the extent permitted by law, Permatec will indemnify the Company, each director, officer and not jointly) agrees to indemnify and hold harmless controlling person of the Company and each officer of its Affiliatesthe Company who signed the registration statement, directors, employees, members, managers and agents and each Person underwriter, if any, and each person who controls the Company within the meaning of either the Securities Act or the Exchange Actany underwriter, to the fullest extent permitted by applicable lawagainst all claims, from and against any and all losses, claimsdamages and liabilities (or actions, damages proceedings or liabilities to which they or any settlements, if such settlements are effected with the written consent of them may become subject insofar as such lossesPermatec, claims, damages or liabilities arise in respect thereof) arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any prospectus, offering circular or other document in which Permatec's shares are included (including any amendment thereofrelated registration statement, notification or the like) incident to any such registration, qualification or compliance, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, extent that any such untrue statement claim, loss, damage, liability or alleged expense arises out of or is based on any untrue statement or omission made in such registration statement, prospectus, offering circular or alleged omission is contained other document in any reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Holder Permatec and stated to be specifically for inclusion use therein, including, without limitation, or any notice violation by Permatec of the Securities Act or the Exchange Act or any rule or regulation thereunder applicable to Permatec and questionnaire; provided, however, that the total amount relating to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder action or inaction required of Permatec in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which connection with any such Holder may otherwise haveregistration, qualification or compliance, and will reimburse the Company, each of its officers, directors, and each person controlling the Company, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, action or proceeding.
(c) Promptly after receipt by an indemnified The party entitled to indemnification under this Section 5 of 3 (the "Indemnified Party") shall give notice of to the commencement party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, such indemnified party will, if a claim in respect thereof is to be made against and shall permit the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, Indemnifying Party to assume the defense thereofof any such claim or any litigation resulting therefrom, with provided that counsel reasonably satisfactory to such indemnified party (for the Indemnifying Party, who shall notconduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, except with that if the consent defendants in any action include both the Indemnified Party and the Indemnifying Party and there is a conflict of interest which would prevent counsel for the indemnified party, be counsel to Indemnifying Party from also representing the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereofIndemnified Party, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel Indemnified Party or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Parties shall have the right to employ its own select separate counsel (to participate in the defense of such action on behalf of such Indemnified Party or Parties and one local counsel), but to be indemnified for the indemnified party shall bear the reasonable fees, costs and expenses expense of such separate counsel unless (i) Counsel, and provided further that the use failure of counsel chosen by the indemnifying party any Indemnified Party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party give notice as provided herein shall not have employed counsel satisfactory relieve the Indemnifying Party of its obligations under this Agreement, unless such failure to notify materially and adversely affects the indemnified party Indemnifying Party's ability to represent the indemnified party within a reasonable time after notice of the institution of defend such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying partyIndemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partyIndemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or compromise if any pending or threatened proceeding plaintiff to such Indemnified Party of a release from all liability in respect of which 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 the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 3 shall for any indemnified party is reason be unenforceable by an Indemnified Party, although otherwise available in accordance with its terms, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or could have been a party and indemnity could have been sought hereunder payable by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than Indemnified Party as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) respect to which such indemnifying party may be subject Indemnified Party has claimed indemnification, in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnified Party on the one hand and the indemnified party Indemnifying Party on the other in connection with the statements statement or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefit benefits received by the Company on one hand and Permatec on the other shall be deemed to be equal in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total value proceeds received or proposed to be received (after deducting expenses) by Permatec, in each case as set forth in the Company pursuant to table on the sale cover page of Securities in an offering, if anythe prospectus. The relative benefit received by fault, in the Holders shall be deemed to be equal to the total value received case of an untrue statement, alleged untrue statement, omission or proposed to be received (after deducting expenses) by the Holders of Securities in an offeringalleged omission, if any. The relative fault shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Indemnifying Party or the indemnified party on the other Indemnified Party, and the such parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, alleged statement, omission or alleged omission. The parties Company and Permatec agree that it would not be just and equitable if contribution pursuant hereto were to this Section 5(d) were be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the such equitable considerations referred to above in this Section 5(d)consideration. The amount paid or payable by an indemnified party Indemnified Party as a result of the losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to above in this Section 5(d) herein shall be deemed to include any legal or other expenses expense reasonably incurred by such indemnified party Indemnified Party in connection with investigating or defending against any such action or claimclaim which is the subject hereof. Notwithstanding In no case, however, shall Permatec be responsible for a portion of the provisions contribution obligation in excess of this Section 5(d), no Person the net proceeds to Permatec of securities sold as contemplated herein. No person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(fSection11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 1 contract
Sources: Registration Rights Agreement (Medi Ject Corp /Mn/)
Indemnification; Contribution. (a1) The In the event of any registration of any Registrable Securities pursuant to the terms of Section 6, the Company agrees to will indemnify and hold harmless each Holder of Registrable Securities, the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actharmless, to the fullest extent permitted by applicable law, from each of the Designated 66 20 Holders and their respective Affiliates, directors, officers, partners, trustees, employees, legal counsel, accountants, financial advisors and agents, and each other Person, if any, who controls (within the meaning of the Securities Act and the Exchange Act) such Designated Holder or any such directors, officers, partners, trustees, employees, legal counsel, accountants, financial advisors and agents (each of the foregoing, a "designated indemnified party") against any and all losses, claims, damages, liabilitiesliabilities and expenses (including reasonable costs of investigation), expenses and actions joint or several, to which they or any of them such designated indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities and or expenses (or actions or proceedings in respect thereof) arise out of or are based upon (x) any untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally filed or in (y) any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included not misleading contained in any such Registration Statement (in light of the circumstances under which they such Registrable Securities were made) not misleadingregistered under the Securities Act, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will shall not be liable in any such case to the extent that any such loss, claim, damage, damage or liability (or expense actions or proceedings in respect thereof) arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (iix) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally filed or in (y) any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (not misleading in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or amendment or supplement thereto, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained reliance upon and in any conformity with written information relating to concerning such Designated Holder and furnished to the Company by or on behalf of such Holder specifically for inclusion thereinuse in the preparation thereof.
(2) The Company may require, including, without limitation, as a condition to including any notice and questionnaire; provided, howeverRegistrable Securities in any Registration Statement filed pursuant to Section 6, that the total amount Company shall have received an undertaking from each Designated Holder selling such Registrable Securities, severally and not jointly, to be indemnified by such Holder pursuant to this Section 5(bindemnify and hold harmless the Company, its directors, officers, legal counsel, accountants and financial advisors and each other Person, if any, who controls (within the meaning of the Securities Act and the Exchange Act) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus Company or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise have.
directors, officers, legal counsel, accountants and financial advisors (c) Promptly after receipt by an indemnified party under this Section 5 of notice each of the commencement of foregoing, a "Company Indemnified Party") against any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (includingor expenses, without limitationjoint or several, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party Company Indemnified Party may be become subject in such proportion under the Securities Act or otherwise, insofar as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities expenses (or actions or proceedings in respect thereof), as well as ) arise out of or are based upon (x) any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the (y) any omission or alleged omission to state a material fact relates required to information supplied by be stated therein or necessary to make the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent statements therein not misleading contained in any Registration Statement under which such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either registered under the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent amendment or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.supplement
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of If any Registrable Securities, Securities are included in a registration statement under this Agreement:
7.1. To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from each of the Trust and the Corporation, severally and not jointly, shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner and employee of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilitiesliabilities and expenses (joint or several), including reasonable attorneys' fees and disbursements and reasonable expenses and actions of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement, including any preliminary prospectus or in any amendment thereof, or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon the ; or
(ii) The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein (in not misleading;
7.2. To the case extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Trust, the Corporation, each of the Disclosure PackageTrustees 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 preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances foregoing Persons may otherwise become subject under which they were made) not misleadingthe Securities Act, and agrees to reimburse each such indemnified party, as incurred, for any legal the Exchange Act or other federal or state laws, but only insofar as such losses, claims, damages, liabilities and expenses reasonably incurred 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 them such Selling Holder in writing expressly for use in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding)registration; provided, however, that (x) the Company will indemnification required by this Section 7.2 shall not be liable apply to amounts paid in any case to the extent that settlement of any such loss, claim, damage, liability or expense arises if such settlement is effected without the consent of the relevant Selling Holder (iwhich consent shall not be unreasonably withheld) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein and (y) in reliance upon and in conformity with written information furnished to no event shall the Company by or on behalf amount of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to 7.2 exceed the net gross proceeds (after deducting underwriters’ discounts and commissions) from the applicable offering received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveSelling Holder.
(c) 7.3. Promptly after receipt by an indemnified party under this Section 5 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is under this Section 7, such indemnified party shall deliver to be made against the indemnifying party under this Section 5, notify a written notice thereof and the indemnifying party in writing of shall have the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel reasonably satisfactory the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 7 to the extent of such prejudice but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 7. Any fees and expenses incurred by the indemnified party (who including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall not, except with the consent of be paid to the indemnified party, be counsel as incurred, within thirty (30) days of written notice thereof to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such (regardless of whether it is ultimately determined that an indemnified party of its election is not entitled to so assume the defense thereof, the indemnifying party shall not be liable to indemnification hereunder). Any such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own separate counsel (in any such action, claim or proceeding and one local counsel)to participate in the defense thereof, but the indemnified party shall bear the reasonable fees, costs fees and expenses of such separate counsel shall be the expenses of such indemnified party unless (i) the use of counsel chosen by the indemnifying party has agreed to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; pay such fees and expenses or (ii) the actual indemnifying party shall have failed to promptly assume the defense of such action, claim or potential defendants in, proceeding or targets of, (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both the such indemnified party and the indemnifying party party, and the such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional in addition to those available to the indemnifying party; (iii) party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party shall could not have employed counsel satisfactory to the indemnified party to faithfully represent the indemnified party within a reasonable time after notice of the institution of (in which case, if such action; or (iv) indemnified party notifies the indemnifying party shall authorize the indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. No , the indemnifying party shallshall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one action such action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all such indemnified parties parties, unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest 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 indemnified party. An indemnifying party shall not be liable under obligated to pay the fees and expenses of such additional counsel or counsels).
7.4. If the indemnification required by this Section 5 7 from the indemnifying party is unavailable to any an indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding hereunder in respect of which indemnification any losses, claims, damages, liabilities or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented expenses referred to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No this Section 7:
(i) The indemnifying party, in the defense lieu of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by indemnifying such indemnified party, unless such settlement shall contribute to the amount paid or compromise (i) includes an unconditional release of payable by such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale fault of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 7.1 and Section 7.2, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) 7.4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 5(d7.4(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no No Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation.
7.5. For purposes of If indemnification is available under this Section 57, the indemnifying parties shall indemnify each Person who controls indemnified party to the full extent provided in this Section 7 without regard to the relative fault of such indemnifying party or indemnified party or any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights other equitable consideration referred to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director in Section 7.4.
7.6. The obligations of the Company shall have Trust, the same rights to contribution as Corporation and the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder Selling Holders of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in under this Section 57 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and will survive the transfer of Registrable Securitiesotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Prudential Insurance Co of America)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of If any Registrable SecuritiesSecurities are included in a registration statement under this Agreement, including a Shelf Registration:
9.1. To the Affiliates, directors, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from the Company shall indemnify and hold harmless each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of the Securities Act, and each officer, director, partner, employee, agent and consultant of such Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilitiesliabilities and expenses joint or several), including attorneys' fees and disbursements and expenses and actions of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or to which they or any of them the foregoing Persons may become subject under the Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed such registration statement, including any preliminary prospectus or in any amendment thereof, or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon the ;
(ii) The omission or alleged omission to state therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading; or
(in iii) Any violation or alleged violation by the case Company of the Disclosure PackageSecurities Act, the Exchange Act, any applicable state securities law or any preliminaryrule or regulation promulgated under the Securities Act, final the Exchange Act or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding)applicable state securities law; provided, however, that the Company will indemnification required by this Section 8.1 shall not be liable apply to amounts paid in any case to the extent that settlement of any such loss, claim, damage, liability or expense if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability or expense to the extent that it arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein a Violation which occurs in reliance upon and in conformity with written information furnished to the Company by or on behalf of the indemnified party expressly for use in connection with such registration; provided, further, that the indemnity agreement contained in this Section 8 shall not apply to any underwriter to the extent that any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, loss is based on or (ii) arises out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any an untrue statement or alleged untrue statement of a material fact fact, or an omission or alleged omission to state a material fact, contained in a Registration Statement as originally filed or in omitted from any amendment thereofpreliminary prospectus if the final prospectus shall correct such untrue statement or alleged untrue statement, or such omission or alleged omission, and a copy of the final prospectus has not been sent or given to such person at or prior to the confirmation of sale to such person if such underwriter was under an obligation to deliver such final prospectus and failed to do so. The Company shall also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the Disclosure Package distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Selling Holders.
9.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who shall have signed the registration statement, each Person, if any, who controls the Company within the meaning of the Securities Act, any Holder Free Writing Prospectusother Selling Holder, preliminary, final or summary Prospectus included in any controlling Person of any such Registration Statementother Selling Holder and each officer, director, partner, and employee of such other Selling Holder and such controlling Person, against any and all losses, claims, damages, liabilities and expenses joint and several), including attorneys' fees and disbursements and expenses of investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding or investigation, or in to which any amendment thereof of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or supplement theretoother federal or state laws, or insofar as such losses, claims, damages, liabilities and expenses arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration StatementViolation, in light of the circumstances under which they were made) not misleading, each case to the extent, but extent (and only to the extent, ) that any such untrue statement or alleged untrue statement or omission or alleged omission is contained Violation occurs in any reliance upon and in conformity with written information relating to furnished by such Selling Holder furnished to the Company by or on behalf of expressly for use in connection with such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaireregistration; provided, however, that the total amount to be indemnified indemnification required by such Holder pursuant to this Section 5(b) 8.2 shall be limited not apply to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder amounts paid in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which settlement of any such loss, claim, damage, liability or expense if settlement is effected without the consent of the relevant Selling Holder may otherwise haveof Registrable Securities, which consent shall not be unreasonably withheld.
(c) 9.3. Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is under this Section 8, such indemnified party shall deliver to be made against the indemnifying party under this Section 5, notify a written notice of the commencement thereof and the indemnifying party in writing of shall have the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel reasonably satisfactory the fees and disbursements and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time following the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 8 but shall not relieve the indemnifying party of any liability that it may have to any indemnified party otherwise than pursuant to this Section 8. Any fees and expenses incurred by the indemnified party (who including any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall not, except with the consent of be paid to the indemnified party, be counsel as incurred, within thirty (30) days of written notice thereof to the indemnifying party); provided, andhowever, except as provided in the next sentence, after notice from the indemnifying that if it is ultimately determined that an indemnified party is not entitled to indemnification hereunder such indemnified party of its election shall be obligated to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding repay the indemnifying party’s rights in the prior sentence, the . Any such indemnified party shall have the right to employ its own separate counsel (in any such action, claim or proceeding and one local counsel)to participate in the defense thereof, but the indemnified party shall bear the reasonable fees, costs fees and expenses of such separate counsel shall be the expenses of such indemnified party unless (i) the use of counsel chosen by the indemnifying party has agreed to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; pay such fees and expenses or (ii) the actual indemnifying party shall have failed to promptly assume the defense of such action, claim or potential defendants in, proceeding or targets of, (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both the such indemnified party and the indemnifying party party, and the such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional in addition to those available to the indemnifying party; (iii) party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party shall could not have employed counsel satisfactory to the indemnified party to faithfully represent the indemnified party within a reasonable time after notice of the institution of (in which case, if such action; or (iv) indemnified party notifies the indemnifying party shall authorize the indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. No , the indemnifying party shallshall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one action such action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all such indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified partyparties. An No indemnifying party shall not be liable under this Section 5 to any an indemnified party regarding for any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit proceeding or proceeding in respect claim without the written consent of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld withheld.
9.4. If the indemnification required by this Section 8 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or delayed. No expenses referred to in this Section 8:
(i) The indemnifying party, in the defense lieu of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by indemnifying such indemnified party, unless such settlement shall contribute to the amount paid or compromise (i) includes an unconditional release of payable by such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions actions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The the relative benefit benefits received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if anyindemnifying party and indemnified parties. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8.1 and Section 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 5(d) 8.4 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 5(d8.4(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no No Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation.
9.5. For purposes of If indemnification is available under this Section 58, the indemnifying parties shall indemnify each Person who controls indemnified party to the full extent provided in this Section 8 without regard to the relative fault of such indemnifying party or indemnified party or any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights other equitable consideration referred to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director in Section 8.4.
9.6. The obligations of the Company shall have and the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder Selling Holders of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in under this Section 58 shall survive the completion of any offering of Registrable Securities pursuant to a registration statement under this Agreement, and will survive the transfer of Registrable Securitiesotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (National Record Mart Inc /De/)
Indemnification; Contribution. (a) The Company agrees to In the event of any registration of any equity securities of the Corporation under the Securities Act or applicable Canadian securities Laws, the Corporation will, and hereby does agree to, indemnify and hold harmless each Holder harmless, in the case of Registrable Securitiesany registration statement or prospectus filed pursuant to Section 2, 3 or 4 hereof, the Affiliatesseller of any Registrable Shares covered by such registration statement or prospectus, directors, its respective directors and officers, employees, partners and members, managers and agents each other Person who participates as an underwriter in the offering or sale of each such Holder securities, and each Person other Person, if any, who controls such seller or any such Holder underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities and expenses, expenses and actions to which they or any of them may become subject under the Securities Act, applicable Canadian securities Laws or otherwise, 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 untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally any registration statement or prospectus under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus included therein or filed or in any amendment thereof, or the Disclosure Packagewith applicable Canadian securities regulatory authorities, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will Corporation shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises (i) out of or is based upon any such (x) an untrue statement or alleged untrue statement or omission or alleged omission made therein 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 Company Corporation for use in the preparation thereof by such seller or on behalf of any such Holder specifically for inclusion therein includingunderwriter, without limitation, any notice and questionnaireas the case may be, or (iiy) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such an untrue statement or alleged untrue statement or omission or alleged omission is contained made in any written information relating preliminary prospectus but notified to such Holder furnished seller and underwriter prior to any sale or other disposition of Registrable Shares and subsequently corrected by the Company 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 Holder specifically for inclusion thereinseller or any such director or officer, includingunderwriter or controlling Person and shall survive the transfer of such securities by such seller.
(b) The Corporation may require, without limitationas a condition to including any Registrable Shares in any registration statement or prospectus filed pursuant to Section 2, any notice and questionnaire; provided, however3 or 4 hereof, that the total 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 to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to 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 (after deducting underwriters’ discounts ii) each such underwriter of such securities, to indemnify and commissionshold harmless (in the same manner and to the same extent as set forth in Section 9(a) received 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 Holder prospective seller or such underwriter, as the case may be, to the Corporation for use in the offering to which preparation of such Registration Statementregistration statement, Disclosure Packagepreliminary prospectus, Prospectus final prospectus, amendment or Holder Free Writing Prospectus relatessupplement. This Such indemnity clause will be shall remain in addition to full force and effect regardless of any liability which investigation made by or on behalf of the Corporation or any such Holder may otherwise havedirector, officer or controlling Person and shall survive the transfer of such securities by such seller.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any actionaction or proceeding (including any governmental investigation) involving a claim referred to in either Section 9(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 not relieve the indemnifying party of its obligations under the preceding provisions of this Section 59, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve that the indemnifying party from is materially prejudiced by such failure to give notice. In case any obligations to any such action is brought against an indemnified party other than party, the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to assume the extent that it shall wishdefense thereof, jointly with any other indemnifying party similarly notified, to assume the defense thereofextent that it may wish, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, and after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the indemnifying party shall will not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such the indemnified party in connection with the defense thereof other than reasonable costs of investigationthereof. Notwithstanding the indemnifying party’s rights If, in the prior sentenceindemnified party's reasonable judgment, a conflict of interest between such indemnified party and indemnifying parties may exist in respect of such claim, the indemnified party shall have the right be entitled to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest participate in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party defense thereof and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) counsel for all indemnified parties unless sellers of Registrable Shares, or more than one counsel for the use of only underwriters in connection with any one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement action or compromise separate but similar or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyrelated actions.
(d) In If the event that indemnification provided for in the indemnity provided in foregoing clauses (a), (b) and (c) of this Section 5(a) or Section 5(b) above 9 is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an the indemnified party with parties in respect to of any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and or liabilities referred to therein, 11 then each indemnifying party shall contribute to the amounts paid or payable by such indemnified parties as a result of such losses, claims, damages or liabilities (includingi) as between the Corporation and the holders of Registrable Shares covered by a registration statement, without limitationon the one hand, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectivelyand the underwriters, “Losses”) to which such indemnifying party may be subject 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 SecuritiesRegistrable Shares, or if such allocation is not permitted by applicable law, in such proportion as applicable, and is appropriate to reflect not only the relative benefits but also the relative fault of the indemnifying party Corporation and such holders, on the one hand hand, and of the indemnified party underwriters, on the other other, in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities 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 actions prospectus, on the other, in respect thereof)such proportion as is appropriate to reflect the relative fault of the Corporation and of each such holder in connection with such statements or omissions, as well as any other relevant equitable considerations. The relative benefit benefits received by the Company Corporation and such holders, on the one hand, and the underwriters, on the other, shall be deemed to be equal 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 value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit underwriting discounts and commissions received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if anyunderwriters. The relative fault of the Corporation and such holders, on the one hand, and of the underwriters, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Corporation and such holders or by the underwriters. The relative fault of the Corporation, on the one hand or the indemnified party hand, and of each such holder, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact relates to information supplied by such party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. .
(e) The parties Corporation and the holders of Registrable Shares agree that it would not be just and equitable if contribution pursuant to this Section 5(d9(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(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 claimnext preceding paragraph. Notwithstanding the provisions of this Section 5(d9(d), no Person 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 guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraud or fraudulent misrepresentation. For purposes The obligation of the holders of Registrable Shares to contribute pursuant to this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within 9 is several in the meaning of either proportion that the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director proceeds of the Company shall have the same rights to contribution as the Company, subject in each case offering received by such holder bears to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any total proceeds of the officers, directors or controlling Persons referred to in this Section 5, offering received by all Holders and will survive the transfer of Registrable Securitiesnot joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Odyssey Re Holdings Corp)
Indemnification; Contribution. (a) The In the event of any ----------------------------- registration of any securities of the Company agrees to under the Securities Act, the Company will, and hereby does, indemnify and hold harmless each Holder in the case of Registrable Securitiesany registration statement filed pursuant to Section 2 or 3, the Affiliatesholder of any Registrable Securities covered by such registration statement, directors, its directors and officers, employees, members, managers each officer and agents director of each underwriter, each other person who participates as an underwriter in the offering or sale of such Holder securities and each Person other person, if any, who controls such holder or any such Holder underwriter within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities and expenses, expenses and actions joint or several, to which they such holder or any of them such director or officer or participating or controlling person may become subject under the Securities Act or otherwise, 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 (x) any untrue statement or alleged untrue statement of a any material fact contained in any registration statement under which such 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 Registration Statement as originally filed subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or in any amendment thereof, or the Disclosure Packagesummary prospectus included therein, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the (y) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, or (z) any violation by the Company of any securities laws, and agrees to the Company will reimburse such holder and each such indemnified partydirector, as incurredofficer, 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, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will shall not -------- ------- be liable to any seller, director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in 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 direction of such seller, director, officer, participating person or controlling person for use in the preparation thereof, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or 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 Holder specifically director, officer, participating person or controlling person and shall survive the transfer of such securities by such seller. The Company shall agree to provide for inclusion therein including, without limitation, contribution relating to such indemnity as shall be reasonably requested by any notice and questionnaire, or (ii) out of sales seller of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which or the Company may otherwise haveunderwriters.
(b) Each Holder severally (The Company may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(a), that the Company shall have received an undertaking satisfactory to it from the prospective sellers of such securities and not jointly) agrees their underwriters, to indemnify and hold harmless (in the same manner and to the same extent as set forth in subdivision (a) of this Section 6) the Company, each director of the Company, each officer of the Company who shall sign such registration statement and each of its Affiliatesother person, directorsif any, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, with respect to the fullest extent permitted by applicable lawany statement in or omission from such registration statement, from and against any and all lossespreliminary prospectus, claimsfinal prospectus or summary prospectus included therein, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any if such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any reliance upon and in conformity with written information relating to such Holder furnished to the Company through an instrument duly executed by such sellers or their underwriters specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any such Holder specifically for inclusion thereindirector, including, without limitation, any notice officer or controlling person and questionnaire; provided, however, that shall survive the total amount to be indemnified transfer of such securities by such Holder pursuant sellers. Anything contained herein to this Section 5(b) the contrary notwithstanding, the maximum liability of each prospective seller in the case of each prospective seller shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) actually received by such Holder in prospective seller from the offering to which sale of such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveRegistrable Securities.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any actionaction or proceeding involving a claim 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 not relieve the indemnifying party of its obligations under the preceding subdivisions of this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above 6 except to the extent such action and such failure materially prejudices that the indemnifying party; 's rights are prejudiced, or liabilities and (ii) will notobligations under this Section 6 are increased, in as a result of such failure to give notice. In case any eventsuch action is brought against an indemnified party, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, in and to assume the extent that it shall wishdefense thereof, jointly with any other indemnifying party similarly notified, to assume the defense thereofextent that it may wish, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after . After notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding unless (i) the indemnifying party’s rights in party shall have failed to retain counsel for the prior sentenceindemnified party as aforesaid, (ii) the indemnifying party and the indemnified party shall have mutually agreed to the right to employ its own retention of such counsel or (and one local counsel), but the iii) representation of such indemnified party shall bear by the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen retained by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any differing interests between such action include both the indemnified party and the indemnifying party and any other 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 and/or other indemnified parties which are different from or additional to those available to the indemnifying party; party (iii) in which case the indemnifying party shall not have employed counsel satisfactory the right to direct the defense of such action on behalf of the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party). No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, 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 compromise if any pending or threatened proceeding plaintiff to such indemnified party of 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 indemnifying party (which any consent shall not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify each indemnified party is from and against any loss or could have been a party and indemnity could have been sought hereunder liability by such indemnified party, unless reason of such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyjudgment.
(d) In Indemnification and contribution similar to that specified in this Section 6 (with appropriate modifications) shall be given by the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court Company and each seller of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party Registrable Securities with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal required registration or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which qualification of such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities under any federal or any agents state law or underwriters regulation or all of them were treated as one entity for such purpose) or by any governmental authority other method of allocation which does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of than the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions rights and obligations of the parties under this Section 5 will remain in full force and effect, regardless of 6 shall survive any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any termination of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable SecuritiesPurchase Agreement.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Bankers Trust New York Corp)
Indemnification; Contribution. (a) The Company agrees shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to indemnify time, indemnify, defend and hold harmless harmless, to the full extent permitted by law, each Holder holder of Registrable Securities, the Affiliatespartners, members, officers, directors, officers, employees, members, managers agents and agents employees of each such Holder and of them, each Person who controls any each such Holder holder (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act), the partners, members, officers, directors, agents and employees of each such controlling person and any financial or investment adviser (each, a “Covered Person”), to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities, expenses actions or proceedings (whether commenced or threatened), costs (including, without limitation, costs of preparation and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities attorneys’ fees) and expenses (or actions in respect thereofincluding expenses of investigation) arise (collectively, “Losses”), as incurred, arising out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed Statement, prospectus or form of prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplements thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, except to the extent that the same arise out of or are based upon information furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and agrees relating to reimburse each such indemnified party, as incurred, for any legal action required of or other expenses reasonably incurred inaction by them the Company in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding)registration; provided, however, that the Company will shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any case other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such loss, claim, damage, liability or expense arises (i) Losses arise out of or is are based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity any preliminary prospectus if (A) such Person failed to send or deliver a copy of the prospectus with written information furnished or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (B) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission and (C) the Company has complied with its obligations under Section 5D(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. If the Public Offering pursuant to any Registration Statement provided for under this Section 5 is made through underwriters, (x) no action or failure to act on the part of such Holder specifically for inclusion therein including, without limitation, underwriters (whether or not such underwriter is an Affiliate of any notice and questionnaire, or (iiholder of Registrable Securities) out shall affect the obligations of sales the Company to indemnify any holder of Registrable Securities made during a Suspension Period after notice is given or any other Person pursuant to Section 1(f)(iithe preceding sentence and (y) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveagrees to enter into an underwriting agreement in customary form with such underwriters and the Company agrees to indemnify such underwriters, their officers, directors, employees and agents, if any, and each Person, if any, who controls such underwriters within the meaning of Section 15 of the Securities Act to the same extent as provided in this Section 5F 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 any officer, director or employee of such underwriter or any Person who controls such underwriter within the meaning of Section 15 of the Securities Act, to the extent that the loss, claim, damage, liability (or proceedings in respect thereof) or expense for which indemnification is claimed results from such underwriter’s failure to send or give a copy of an amended or supplemented final prospectus to the Person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such amended or supplemented final prospectus prior to such written confirmation and the underwriter was provided with such amended or supplemented final prospectus.
(b) Each Holder In connection with any Registration Statement in which a holder of Registrable Securities is participating, such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information regarding such holder as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally (and not jointly) agrees , to indemnify indemnify, defend and hold harmless to the Company and each of full extent permitted by law, the Company, its Affiliates, directors, officers, agents and employees, members, managers and agents and each Person who controls the Company (within the meaning of either Section 15 of the Securities Act or and Section 20 of the Exchange Act), to and the fullest extent permitted by applicable lawpartners, members, directors, officers, agents or employees of such controlling persons, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise Losses arising out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretoprospectus, or arise form of prospectus, or arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information regarding such holder so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, that such holder of Registrable Securities shall not be liable in any written such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information relating to expressly for use in such Holder Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all taxes and expenses incurred in connection therewith) received by such holder upon the sale of the Registrable Securities giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveparty.
(c) Promptly after receipt by If any Person shall be entitled to indemnity hereunder (an indemnified “Indemnified Party”), such Indemnified Party shall give prompt notice to the party under this Section 5 of notice or parties from which such indemnity is sought (the “Indemnifying Parties”) of the commencement of any action, suit, proceeding or investigation or written threat thereof (a “Proceeding”) with respect to which such indemnified party willIndemnified Party seeks indemnification or contribution pursuant hereto; provided, if a claim in respect thereof is that the failure to be made against the indemnifying party under this Section 5, so notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will Indemnifying Parties shall not relieve it the Indemnifying Parties from any obligation or liability under paragraph (a) or (b) above except to the extent that the Indemnifying Parties have been prejudiced by such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) abovefailure. The indemnifying party Indemnifying Parties shall be entitled have the right, exercisable by giving written notice to participate therein andan Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the extent that it shall wishIndemnifying Parties’ expense, jointly with any other indemnifying party similarly notified, to assume the defense thereofof any such Proceeding, with counsel reasonably satisfactory to such indemnified party Indemnified Party; provided, that an Indemnified Party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided if more than one such Indemnified Party is named in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Proceeding) shall have the right to employ its own separate counsel (in any such Proceeding and one local counsel)to participate in the defense thereof, but the indemnified party shall bear the reasonable fees, costs fees and expenses of such separate counsel unless shall be at the expense of such Indemnified Party or parties unless: (i) the use of counsel chosen by the indemnifying party Indemnifying Parties agree to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified partypay such fees and expenses; (ii) the actual Indemnifying Parties fail promptly to assume the defense of such Proceeding or potential defendants in, fail to employ counsel reasonably satisfactory to such Indemnified Party or targets of, parties; or (iii) the named parties to any such action Proceeding (including any impleaded parties) include both the indemnified party such Indemnified Party or parties and the indemnifying party Indemnifying Parties or an Affiliate of the Indemnifying Parties or such Indemnified Parties, and the indemnified party shall have reasonably concluded that there may be legal one or more defenses available to it and/or other indemnified parties which such Indemnified Party that are different from or additional to those available to the indemnifying party; (iii) Indemnifying Parties, in which case, if such Indemnified Party notifies the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallIndemnifying Parties; the Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one action such Proceeding or separate but substantially similar or related actions Proceedings in the same jurisdiction jurisdiction, arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all indemnified parties unless such Indemnified Party. Whether or not such defense is assumed by the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party Indemnifying Parties, such Indemnifying Parties or Indemnified Party shall not be liable under this Section 5 subject to any indemnified party regarding liability for any settlement made without its or compromise or their consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to but such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayedwithheld). No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, The Indemnifying Parties shall not consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (ix) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, provides for other than as a result monetary damages without the consent of the imposition of financial obligations for Indemnified Party (which such indemnified party will consent shall not be indemnified hereunder and unreasonably withheld or delayed) or (iiiy) does not include any statement as an unconditional term thereof the giving by the claimant or plaintiff to or any admission such Indemnified Party of faulta release, culpability or a failure in form and substance satisfactory to act by or on behalf the Indemnified Party, from all liability in respect of any indemnified partysuch Proceeding for which such Indemnified Party would be entitled to indemnification hereunder.
(d) In If the event that the indemnity indemnification provided for in this Section 5(a) or Section 5(b) above 5F is held by a court of competent jurisdiction to be unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless an indemnified party with for any Losses in respect to any loss, claim, damage, liability, expense or action referred to hereinof which this Section 5F would otherwise apply by its terms, then each applicable Indemnifying Party, in lieu of indemnifying party agrees such Indemnified Party, shall have an obligation to contribute to the aggregate lossesamount paid or payable by such Indemnified Party as a result of such Losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnifying Party, on the one hand hand, and the indemnified party such Indemnified Party, on the other hand, in connection with the actions, statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefit received by fault of such Indemnifying Party, on the Company shall be deemed to be equal to one hand, and Indemnified Party, on the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offeringother hand, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the indemnifying party on the one hand by, such Indemnifying Party or the indemnified party on the other Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 5F(a) or 5F(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d5F(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 5(d5F(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d5F(d), no Person an Indemnifying Party that is a holder of Registrable Securities shall not be required to contribute any amount in excess of the amount by which the net 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 fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions Each Securityholder and the Company agree that such Person shall not permit any amendment to the Certificate of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities Incorporation or the Company or any by-laws of the officers, directors Company that would reduce the scope of the indemnification or controlling Persons referred to in this Section 5, and will survive the transfer limitation of Registrable Securitiesliability provisions contained therein.
Appears in 1 contract
Sources: Securityholders Agreement (Universal Hospital Services Inc)
Indemnification; Contribution. (a) The Company agrees Subject to the terms and conditions of this Section 6.10, the Corporation shall indemnify and hold harmless (i) each Holder of Registrable SecuritiesSelling Holder, the Affiliatesits Affiliates and any Permitted Transferee, including their respective directors, officers, employees, membersadvisers, managers agents, administrators and agents successors and assigns with respect to any registration statement filed pursuant to this Agreement, (ii) any underwriter or selling agent selected by the Requesting Holders or other securities professional, if any, which facilitates the disposition of the Registrable Securities with respect to such Registrable Securities and (iii) each such Holder and each Person person who controls the Selling Holders or Affiliates thereof or such underwriter, selling agent or securities professional, including their respective directors, officers, employees, advisers, agents, administrators and successors and assigns, and any such Holder underwriter or selling agent, within the meaning of either Section 15 of the Securities Act or and Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities or expenses (each a "Loss" and collectively "Losses"), expenses and actions joint or several, to which they the Selling Holders or any of them such persons may become subject insofar under the Securities Act or otherwise, to the extent that such Losses (or related actions or proceedings) arise out of or are based upon (A) any untrue statement or alleged untrue statement of a material fact contained in a registration statement, offering circular or other document or any amendments or supplements thereto, in which such Registrable Securities are to be or were included for registration under the Securities Act, or any omission or alleged omission to state a material fact required to be stated or necessary to make the statements in such registration statement, offering circular or other document, as amended or supplemented, not misleading (B) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus if used prior to the effective date of the registration statement, any final prospectus (as supplemented, if the Corporation shall have filed with the SEC any supplement thereto) if used during the period in which the Corporation is required to keep the registration statement to which such prospectus relates current and otherwise in compliance with Section 10(a) of the Securities Act, or any omission or alleged omission to state a material fact required to be stated or necessary to the make statements in such preliminary prospectus or final prospectus, in the light of the circumstances under which such statements were made, not misleading or (C) any material violation or alleged material violation of the Securities Act, the Exchange Act, the rules and regulations as promulgated of the Securities Act and the Exchange Act, and state securities laws; provided, however, that the Corporation shall not be liable to any Person and shall have no obligation to provide any indemnification hereunder to the extent any such Losses (or actions or proceedings in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, offering circular or other document prospectus, as the case may be, in reliance upon and in conformity with written information furnished to the Corporation by a Person seeking such indemnification or on such Person's behalf specifically for inclusion in such document. The indemnity provided in this Section 6.10 shall remain in full force and effect regardless of any investigation made by or on behalf of the Selling Holders or any such other persons and shall survive the transfer of the Registrable Securities by the Selling Holders or any such other persons. Notwithstanding anything provided herein to the contrary, (i) the Corporation shall not be liable in any such case to the extent that any such losses, claims, damages, liabilities or expenses arise out of or are based upon an untrue statement or omission made in any preliminary prospectus if (x) such Selling Holder or underwriter failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities, (y) the prospectus would have completely corrected such untrue statement or omission and (z) the Corporation delivered a copy of such prospectus to such Selling Holder or underwriter prior to such written confirmation of sale; and (ii) the Corporation shall not be liable in any such case to the extent that any such losses, claims, damages, liabilities or expenses arise out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission in the prospectus, if such untrue statement, omission or alleged omission is completely corrected in an amendment or supplement to the prospectus and if, having previously been furnished by or on behalf of the Corporation with copies of the prospectus as so amended or supplemented, such Selling Holder or underwriter thereafter sells Registrable Securities pursuant to the Registration Statement and fails to deliver such prospectus as so amended or supplemented, prior to or concurrently with the sale of a Registrable Security to the Person asserting such damages who purchased such Registrable Security from such Selling Holder or underwriter after such Selling Holder's or underwriter's receipt of such prospectus as so amended or supplemented by or on behalf of the Corporation.
(b) Each Selling Holder shall severally, and not jointly, indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 6.10 hereof) the Corporation, each director, officer and employee of the Corporation and each other person, if any, who controls the Corporation within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, the Corporation's investment advisers and agents, and each of their respective heirs, executors, administrators and successors and assigns, against any Losses to which such Person may become subject under the Securities Act or otherwise, to the extent that such Losses (or related actions in respect thereofor proceedings) arise out of or are based upon any untrue statement or alleged untrue statement in or omission or alleged omission from any registration statement filed by the Corporation pursuant to this Agreement, any prospectus included in such registration statement, any offering circular or other document or any amendment or supplement to such registration statement, prospectus, offering circular or other document, as the case may be, of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any if such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Company by Corporation or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliatesrepresentatives by such Selling Holder or such other Persons, directorsif any, employees, members, managers and agents and each Person who controls control the Company Selling Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder the Selling Holder's behalf, specifically for inclusion thereinin such registration statement, includingprospectus, without limitationoffering circular or other document, any notice and questionnaireas the case may be; provided, however, that the total amount to be indemnified by such Holder pursuant to Selling Holder's aggregate liability under this Section 5(b) Agreement shall be limited to an amount equal to the net proceeds (after deducting the underwriters’ discounts ' discount and commissionsthe expenses incurred in connection with the applicable offering) received by the Selling Holder from its sale of securities effected pursuant to such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveregistration.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any actionaction or proceeding (an "Action") involving a claim referred to in Section 6.10(a) and 6.10(b), such indemnified party willshall, if a claim in respect thereof indemnification is sought against an indemnifying party, give written notice to be made against the indemnifying party under this Section 5of the commencement of such Action; provided, notify however, that the failure of any indemnified party to give said notice shall not relieve the indemnifying party in writing of its obligations under Section 6.10(a) and 6.10(b), as the case may be, except to the extent that the indemnifying party is actually and materially prejudiced by such failure. In case an Action is brought against any indemnified party, and such indemnified party notifies an indemnifying party of the commencement thereof; but , the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying may elect by written notice delivered to the indemnified party similarly notifiedpromptly after receiving the aforesaid notice, to assume the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentenceforegoing, the indemnified party shall have the right to employ its own counsel (and one local counsel)in any such case, but the indemnified party shall bear the reasonable fees, costs fees and expenses of such separate counsel shall be at the expense of such indemnified party, unless (i) the use employment of such counsel chosen shall have been authorized in writing by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; , (ii) the actual or potential defendants in, or targets of, any such action include both indemnifying party shall not have employed counsel (reasonably satisfactory to the indemnified party and party) to take charge of the indemnifying party and defense of such Action, within a reasonable time after notice of the commencement thereof or (iii) such indemnified party reasonably shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party or that a conflict of interest exists between the indemnified party and the indemnifying party; . If any of the events specified in clauses (i), (ii) or (iii) of the preceding sentence shall have occurred or otherwise shall be applicable, then the fees and expenses of one counsel (or firm of counsel) for the indemnified party shall be borne by the indemnifying party. Anything in this Section 6.10(c) to the contrary notwithstanding, an indemnifying party shall not have employed counsel satisfactory to be liable for the indemnified party to represent settlement of any action effected without its prior written consent (which consent shall not unreasonably be withheld or delayed), but if settled with the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense prior written consent of the indemnifying party, or if there be a final judgment adverse to the indemnified party, 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, in connection with any one action or separate but substantially similar or related actions in without the same jurisdiction arising out prior consent of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been does not include as a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an term thereof the unconditional release of such the indemnified party from all liability on claims that are the subject matter in respect of such proceeding, (ii) does not involve the imposition of equitable remedies claim or litigation. Each indemnified party shall furnish such information regarding itself or the imposition claims in question as the indemnifying party may reasonably request in writing and as shall be required in connection with the defense of any obligations on such indemnified party, claim and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partylitigation resulting therefrom.
(d) In If the event that the indemnity indemnification provided for in this Section 5(a) or Section 5(b) above 6.10 is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with in respect to of any loss, claim, damage, liability, expense or action referred to hereinLosses, then each applicable indemnifying party agrees to shall, in lieu of indemnifying such indemnified party, contribute to the aggregate losses, claims, damages and liabilities (includingamount paid or payable by such indemnified party as a result of such Losses which amount shall include, without limitation, the legal or fees and other expenses reasonably incurred by such indemnified party in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject the investigation and defense in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Corporation, on the one hand hand, and the indemnified party parties to be indemnified pursuant to this Section 6.10, on the other in connection with the statements or omissions which resulted in such losseshand, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or mitigate the damage in respect of or prevent such any untrue statement or omissionomission or alleged untrue statement or omission giving rise to such indemnification obligation. The parties Corporation and the Holders agree that it would not be just and equitable if contribution contributions pursuant to this Section 5(d) 6.10 were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does did not take account of the equitable considerations referred to above in this Section 5(d)above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person No person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions Periodic payments of amounts required to be paid pursuant to this Section 5 will remain 6.10 shall be made during the course of the investigation or defense, as and when reasonably itemized bills therefor are delivered to the indemnifying party in full force and effect, regardless respect of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to particular Loss as incurred.
(f) The remedies provided in this Section 5, 6.10 are not exclusive and will survive the transfer of Registrable Securitiesshould not limit any right or remedies that may otherwise be available to an indemnified party at law or in equity.
Appears in 1 contract
Sources: Securityholders Agreement (Pinnacle Gas Resources, Inc.)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesTo the extent permitted by law, the AffiliatesCompany will indemnify the Investor, each of its officers, directors, officersmembers and partners, employees, members, managers and agents of each such Holder and each Person person controlling such Investor, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, each director and controlling person of the Company and each officer of the Company who signed the registration statement, and each underwriter, if any, and each person who controls any underwriter, against all claims, losses, damages and liabilities (or actions, proceedings or settlements, if such Holder within settlements are effected with the meaning written consent of either the Company, in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification of the like) incident to any such registration, qualification or compliance, or any omission (or alleged omission) to state therein a material fact required to be sated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or the Exchange Act, Act or any rule or regulation thereunder applicable to the fullest Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will reimburse the Investor, each of its officers, directors, members and partners, and each person controlling such Investor, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, action or proceeding; provided, however, 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 or is based on any untrue statement or omission made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Company by such Investor or underwriter and stated to be specifically for use therein.
(b) To the extent permitted by applicable law, from the Investor will indemnify the Company, each director, officer and controlling person of the Company and each officer of the Company who signed the registration statement, and each underwriter, if any, and each person who controls any underwriter, against any and all claims, losses, claims, damages, liabilities, expenses damages and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions actions, proceedings or settlements, if such settlements are effected with the written consent of the Investor, in respect thereof) arise arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any prospectus, offering circular or other document in which the Investor's shares are included (including any amendment thereofrelated registration statement, notification of the like) incident to any such registration, qualification or the Disclosure Packagecompliance, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (not misleading in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such claim, loss, claim, damage, liability or expense arises (i) out of or is based upon on any such untrue statement or alleged untrue statement or omission made in such registration statement, prospectus, offering circular or alleged omission made therein other document in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder Investor and stated to be specifically for inclusion therein including, without limitation, any notice and questionnaireuse therein, or (ii) out any violation by the Investor of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, Act or any rule or regulation thereunder applicable to the fullest extent permitted by applicable law, from Investor and against any and all losses, claims, damages relating to action or liabilities to which they or any inaction required of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained the Investor in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in connection with any such Registration Statementregistration, qualification or in any amendment thereof or supplement theretocompliance, or arise out and will reimburse the Company, each of or are based upon its officers, directors, and each person controlling the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure PackageCompany, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in each such underwriter and each person who controls any such Registration Statementunderwriter, for any legal and any other expenses reasonably incurred in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that connection with investigating and defending or settling any such untrue statement claim, loss, damage, liability, action or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveproceeding.
(c) Promptly after receipt by an indemnified The party entitled to indemnification under this Section 5 of 3 (the "Indemnified Party") shall give notice of to the commencement party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, such indemnified party will, if a claim in respect thereof is to be made against and shall permit the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, Indemnifying Party to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, unless such settlement, compromise or consent is consented failure to in writing by notify materially adversely affects the Indemnifying Party's ability to defend such indemnifying party, which consent shall not be unreasonably withheld or delayedaction. No indemnifying partyIndemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partyIndemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or compromise if any pending or threatened proceeding plaintiff to such Indemnified Party of a release from all liability in respect of which 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 the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 3 shall for any indemnified party is reason be unenforceable by an Indemnified Party, although otherwise available in accordance with its terms, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or could have been a party and indemnity could have been sought hereunder payable by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than Indemnified Party as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) respect to which such indemnifying party may be subject Indemnified Party has claimed indemnification, in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnified Party on the one hand and the indemnified party Indemnifying Party on the other in connection with the statements statement or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefit received by fault, in the Company shall be deemed to be equal to the total value received case of an untrue statement, alleged untrue statement, omission or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offeringalleged omission, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Indemnifying Party or the indemnified party on the other Indemnified Party, and the such parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, alleged statement, omission or alleged omission. The parties Company and Investor agree that it would not be just and equitable if contribution pursuant hereto were to this Section 5(d) were be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the such equitable considerations referred to above in this Section 5(d)consideration. The amount paid or payable by an indemnified party Indemnified Party as a result of the losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to above in this Section 5(d) herein shall be deemed to include any legal or other expenses expense reasonably incurred by such indemnified party Indemnified Party in connection with investigating or defending against any such action or claimclaim which is the subject hereof. Notwithstanding In no case, however, shall Investor be responsible for a portion of the provisions contribution obligation in excess of this Section 5(d), no Person the net proceeds to such Investor of securities sold as contemplated herein. No person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(fSection11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or Anything to the Company or any of the officers, directors or controlling Persons referred to contrary contained in this Section 53 notwithstanding, and will survive no Investor shall be liable for any indemnification or contribution in excess of the transfer net proceeds received by it from any sale of Registrable SecuritiesStock which has been registered hereunder.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Medi Ject Corp /Mn/)
Indemnification; Contribution. (a) The Company agrees to In the event of any registration of any equity securities of the Corporation under the Securities Act or applicable Canadian Securities Laws, the Corporation will, and hereby does agree to, indemnify and hold harmless each Holder harmless, in the case of Registrable Securitiesany 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 Affiliatesseller of any Registrable Shares covered by such registration statement or prospectus or any related preliminary prospectus or free writing prospectus, directors, its respective directors and officers, employees, partners and members, managers and agents each other Person who participates as an underwriter in the offering or sale of each such Holder securities, and each Person other Person, if any, who controls such seller or any such Holder underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities and expenses, expenses and actions to which they or any of them may become subject under the Securities Act, applicable Canadian Securities Laws or otherwise, 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 untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally filed any registration statement or in prospectus under which such securities were registered under the Securities Act, any amendment thereof, related preliminary prospectus or the Disclosure Packagefree writing prospectus, or any preliminary, preliminary prospectus or final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus filed with applicable Canadian Securities Commissions, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will Corporation shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in 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 Company Corporation for use in the preparation thereof by such seller or on behalf of any such Holder specifically for inclusion therein includingunderwriter, without limitationas the case may be, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereofidentified as such. This indemnity clause will shall be in addition to any liability which the Company Corporation may otherwise have.
(b) Each Holder severally (. Such indemnity shall remain in full force and not jointly) agrees to indemnify and hold harmless the Company and each effect regardless of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company investigation made by or on behalf of such Holder specifically for inclusion thereinseller or any such director or officer, includingunderwriter or controlling Person and shall survive the transfer of such securities by such seller.
(b) The Corporation may require, without limitationas a condition to including any Registrable Shares in any registration statement or prospectus filed pursuant to Section 2, any notice and questionnaire; provided, however3 or 4 hereof, that the total 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 to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to 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 (after deducting underwriters’ discounts ii) each such underwriter of such securities, to indemnify and commissionshold harmless (in the same manner and to the same extent as set forth in Section 9(a) received 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 Holder prospective seller or such underwriter, as the case may be, to the Corporation for use in the offering to which preparation of such Registration Statementregistration statement, Disclosure Packagepreliminary prospectus, Prospectus final prospectus, amendment or Holder Free Writing Prospectus relatessupplement, and identified as such. This Such indemnity clause will be shall remain in addition to full force and effect regardless of any liability which investigation made by or on behalf of the Corporation or any such Holder may otherwise havedirector, officer or controlling Person and shall survive the transfer of such securities by such seller.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any actionaction or proceeding (including any governmental investigation) involving a claim referred to in either Section 9(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 not relieve the indemnifying party of its obligations under the preceding provisions of this Section 59, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve that the indemnifying party from is materially prejudiced by such failure to give notice. In case any obligations to any such action is brought against an indemnified party other than party, the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to assume the extent that it shall wishdefense thereof, jointly with any other indemnifying party similarly notified, to assume the defense thereofextent that it may wish, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, and after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the indemnifying party shall will not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such the indemnified party in connection with the defense thereof other than reasonable costs of investigationthereof. Notwithstanding If, in the indemnifying indemnified party’s rights reasonable judgment, a conflict of interest between such indemnified party and indemnifying parties may exist in the prior sentencerespect of such claim, the indemnified party shall have the right be entitled to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest participate in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party defense thereof and the indemnifying party shall be liable 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 indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, underwriters in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyactions.
(d) In If the event that indemnification provided for in the indemnity provided in foregoing clauses (a), (b) and (c) of this Section 5(a) or Section 5(b) above 9 is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an the indemnified party with parties in respect to of any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and or liabilities referred to therein, then each indemnifying party shall contribute to the amounts paid or payable by such indemnified parties as a result of such losses, claims, damages or liabilities (includingi) as between the Corporation and the holders of Registrable Shares covered by a registration statement, without limitationon the one hand, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectivelyand the underwriters, “Losses”) to which such indemnifying party may be subject 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 SecuritiesRegistrable Shares, or if such allocation is not permitted by applicable law, in such proportion as applicable, and is appropriate to reflect not only the relative benefits but also the relative fault of the indemnifying party Corporation and such holders, on the one hand hand, and of the indemnified party underwriters, on the other other, in connection with the statements or omissions which that resulted in such losses, claims, damages or liabilities 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 actions prospectus, on the other, in respect thereof)such proportion as is appropriate to reflect the relative fault of the Corporation and of each such holder in connection with such statements or omissions, as well as any other relevant equitable considerations. The relative benefit benefits received by the Company Corporation and such holders, on the one hand, and the underwriters, on the other, shall be deemed to be equal 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 value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit underwriting discounts and commissions received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if anyunderwriters. The relative fault of the Corporation and such holders, on the one hand, and of the underwriters, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Corporation and such holders or by the underwriters. The relative fault of the Corporation, on the one hand or the indemnified party hand, and of each such holder, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact relates to information supplied by such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. .
(e) The parties Corporation and the holders of Registrable Shares agree that it would not be just and equitable if contribution pursuant to this Section 5(d9(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(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 claimnext preceding paragraph. Notwithstanding the provisions of this Section 5(d9(d), no Person 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 guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was not guilty of such fraud or fraudulent misrepresentation. For purposes The obligation of the holders of Registrable Shares to contribute pursuant to this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within 9 is several in the meaning of either proportion that the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director proceeds of the Company shall have the same rights to contribution as the Company, subject in each case offering received by such holder bears to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any total proceeds of the officers, directors or controlling Persons referred to in this Section 5, offering received by all holders and will survive the transfer of Registrable Securitiesnot 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:
(a) The To the extent permitted by applicable law, the Company agrees to shall indemnify and hold harmless each Holder of Registrable SecuritiesHolder, the Affiliateseach Person, directorsif any, officers, employees, members, managers and agents of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable lawand each officer, from director, partner and employee of such Holder and such controlling Person, against any and all losses, claims, damages, liabilities, expenses and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (joint or actions in respect thereof) several), including reasonable attorney’s fees and disbursements and reasonable expenses of investigation (collectively, “Losses”), incurred by such Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon any of the following statements or omissions (collectively, a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in the registration statement, including any amendment thereofpreliminary prospectus, any issuer free writing prospectus, the general disclosure package or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final amendments or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement supplements thereto, or arise out of or are based upon ; or
(ii) the omission or alleged omission to state therein a material fact required to be stated therein in either such preliminary prospectus, issuer free writing prospectus, general disclosure package or final prospectus, or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementtherein, in light of the circumstances under which they were made) , not misleading; provided, however, that the indemnification required by this Section 7(a) shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such Loss to the extent, but only to the extent, extent that any such untrue statement it arises out of or alleged untrue statement or omission or alleged omission is contained based upon a Violation which occurs in any written reliance upon and in conformity with information relating to such Holder furnished in writing to the Company by or on behalf of a Holder or any underwriter expressly for use in connection with such registration; and provided, further, that this indemnity shall not be available to any Person who offers or Transfers any Registrable Securities (whether pursuant to a prospectus or not) during any period which the Company has notified the Holder specifically that such offers and Transfers must cease under the Agreement, including Sections 2.3(a), 4(b), 5(b) and 5(c). Subject to Section 7(c), in connection with the foregoing indemnification obligations, the Company shall not be liable for inclusion thereinreasonable fees and expenses of more than one separate firm for all the Holders.
(b) To the extent permitted by applicable law, includingthe Holders (jointly and severally) shall indemnify and hold harmless the Company, without limitationeach 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, and each officer, director, partner, and employee of such controlling Person, against any notice and questionnaireall Losses incurred by such Person pursuant to any actual or threatened action, suit, proceeding or investigation, or to which any of the foregoing Persons may otherwise become subject under the Securities Act, the Exchange Act or other federal or state laws, but only insofar as such Losses arise out of or are based upon any Violation, in each case to the extent that such Violation arises out of or is based upon information furnished in writing by or on behalf of a Holder expressly for use in connection with such registration; provided, however, that the total amount to be indemnified (x) any indemnification required by such Holder pursuant to this Section 5(b7(b) shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of the Holders (which consent shall not be limited to unreasonably withheld) and (y) in no event shall the net amount of any indemnity obligation under this Section 7(b) exceed the gross proceeds (after deducting underwriters’ discounts and commissions) from the applicable offering received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveHolders.
(c) Promptly after receipt by an indemnified party under this Section 5 7 of notice of the commencement of any action, suit, proceeding, investigation or threat thereof made in writing for which such indemnified party will, if may make a claim in respect thereof is under this Section 7, such indemnified party shall deliver to be made against the indemnifying party under this Section 5, notify a written notice thereof and the indemnifying party in writing of shall have the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled right to participate therein in, and, to the extent that it shall wishthe indemnifying party so desires, jointly with any other indemnifying party similarly notifiednoticed, to assume the defense thereofthereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with counsel reasonably satisfactory the fees and disbursements and expenses (in each case, to the extent reasonable) to be paid by the indemnifying party, if representation of such indemnified party (who shall not, except with by the consent of counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party, be party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party)party within a reasonable time following the commencement of any such action, andif prejudicial to its ability to defend such action, except as provided in shall relieve such indemnifying party of any liability to the next sentence, after notice from indemnified party under this Section 7 to the extent of such prejudice but shall not relieve the indemnifying party of any liability that it may have to such any indemnified party of its election otherwise than pursuant to so assume the defense thereof, the indemnifying party shall not be liable to this Section 7. Any such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own separate counsel (in any such action, claim or proceeding and one local counsel)to participate in the defense thereof, but the indemnified party shall bear the reasonable fees, costs fees and expenses of such separate counsel shall be the expenses of such indemnified party unless (i) the use of counsel chosen by the indemnifying party has agreed to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; pay such fees and expenses or (ii) the actual indemnifying party shall have failed to promptly assume the defense of such action, claim or potential defendants in, proceeding or targets of, (iii) the named parties to any such action action, claim or proceeding (including any impleaded parties) include both the such indemnified party and the indemnifying party party, and the such indemnified party shall have reasonably concluded been advised by counsel that there may be one or more legal defenses available to it and/or other indemnified parties which that are different from or additional in addition to those available to the indemnifying party; (iii) party and that the assertion of such defenses would create a conflict of interest such that counsel employed by the indemnifying party shall could not have employed counsel satisfactory to the indemnified party to faithfully represent the indemnified party within a reasonable time after notice of the institution of (in which case, if such action; or (iv) indemnified party notifies the indemnifying party shall authorize the indemnified party in writing that it elects to employ separate counsel at the expense of the indemnifying party. No , the indemnifying party shallshall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the indemnifying party shall not, in connection with any one action such action, claim or proceeding or separate but substantially similar or related actions actions, claims or proceedings in the same jurisdiction arising out of the same general circumstances allegations or allegationscircumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all such indemnified parties parties, unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest 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 indemnified party. An indemnifying party shall not be liable under this Section 5 obligated to any indemnified party regarding any settlement or compromise or consent to pay the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party reasonable fees and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release expenses of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies additional counsel or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partycounsels).
(d) In If the event that indemnification required by this Section 7 from the indemnity provided in Section 5(a) or Section 5(b) above indemnifying party is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with hereunder in respect to of any loss, claim, damage, liability, expense or action Losses referred to hereinin this Section 7:
(i) the indemnifying party, then each applicable in lieu of indemnifying party agrees to such indemnified party, shall contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal amount paid or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which payable by such indemnifying indemnified party may be subject as a result of such Losses in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other parties in connection with the statements or omissions which actions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof)Losses, as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale fault of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether the untrue any Violation has been committed by, or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the by, such indemnifying party on the one hand or the indemnified party on the other parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionViolation. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in Sections 7(a), 7(b) and 7(c), 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 5(d7(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 5(d7(d)(i). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no No Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions obligations of the Company and the Holders under this Section 5 will remain in full force and effect, regardless 7 shall survive the completion of any investigation made by or on behalf of any Holder offering of Registrable Securities or pursuant to the Company or any of the officers, directors or controlling Persons referred to in registration statement under this Section 5Agreement, and will survive the transfer of Registrable Securitiesotherwise.
Appears in 1 contract
Sources: Registration Rights Agreement (Oscient Pharmaceuticals Corp)
Indemnification; Contribution. (a) The Company agrees to In the event of any registration of any securities of the Purchaser under the U.S. Securities Act, the Purchaser will, and hereby does, indemnify and hold harmless each Holder in the case of Registrable Securitiesany registration statement filed pursuant to Section 2 or 3, the AffiliatesVendor, directors, its directors and officers, employees, members, managers each officer and agents director of each underwriter, each other person who participates as an underwriter in the offering or sale of such Holder securities and each Person other person, if any, who controls such holder or any such Holder underwriter within the meaning of either the U.S. Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilitiesliabilities and expenses, expenses and actions joint or several, to which they such holder or any of them such director or officer or participating or controlling person may become subject under the U.S. Securities Act, the U.S. Exchange Act or otherwise, 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 (x) any untrue statement or alleged untrue statement of a any material fact contained in any registration statement under which such securities were registered under the U.S. 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 Registration Statement as originally filed subsequent prospectus and the underwriters are given the opportunity to circulate the corrected prospectus to all persons receiving the preliminary prospectus), final prospectus or in any amendment thereof, or the Disclosure Packagesummary prospectus included therein, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of any document incorporated by reference therein, or are based upon the (y) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, or (z) any violation by the Purchaser of any securities laws, and agrees to the Purchaser will reimburse the Vendor and each such indemnified partydirector, as incurredofficer, 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, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will Purchaser shall not be liable to the Vendor or any such director, officer, participating person or controlling person in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in 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 Purchaser in an instrument executed by or under the direction of the Vendor or such director, officer, participating person or controlling person for use in the preparation thereof, which information was specifically stated to be for use in the registration statement, prospectus, offering circular or other document. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Vendor or any such Holder specifically director, officer, participating person or controlling person and shall survive the transfer of such securities by the Vendor. The Purchaser shall agree to provide for inclusion therein including, without limitation, any notice and questionnaire, contribution relating to such indemnity as shall be reasonably requested by the Vendor or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveunderwriters.
(b) Each Holder severally (The Purchaser may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(a), that the Purchaser shall have received an undertaking satisfactory to it from the Vendor and not jointly) agrees its underwriters, to indemnify and hold harmless the Company Purchaser, each director of the Purchaser, each officer of the Purchaser who shall sign such registration statement and each of its Affiliatesother person, directorsif any, employees, members, managers and agents and each Person who controls the Company Purchaser within the meaning of either the U.S. Securities Act or the Exchange Act, with respect to the fullest extent permitted by applicable lawany statement in or omission from such registration statement, from and against any and all lossespreliminary prospectus, claimsfinal prospectus or summary prospectus included therein, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any if such untrue statement or alleged untrue statement or omission or alleged omission is contained was made in any reliance upon and in conformity with written information relating to such Holder furnished to the Company Purchaser through an instrument duly executed by the Vendor or its underwriters specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, provided that the obligations of the Vendor under any such provision shall be limited to an amount equal to the net proceeds to it from sales of Registrable Securities sold as contemplated herein. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus Purchaser or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise havedirector, officer or controlling person and shall survive the transfer of such securities by the Vendor.
(c) Promptly after receipt by an indemnified party under this Section 5 of notice of the commencement of any actionaction or proceeding involving a claim 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 not relieve the indemnifying party of its obligations under the preceding subdivisions of this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above 6 except to the extent such action and such failure materially prejudices that the indemnifying party; 's liabilities and (ii) will notobligations under this Section 6 are increased as a result of such failure to give notice. In case any such action is brought against an indemnified party, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, in and to assume the extent that it shall wishdefense thereof, jointly with any other indemnifying party similarly notified, to assume the defense thereofextent that it may wish, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after . After notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding unless (i) the indemnifying party’s rights in party shall have failed to retain counsel for the prior sentenceindemnified party as aforesaid, (ii) the indemnifying party and the indemnified party shall have mutually agreed to the right to employ its own retention of such counsel or (and one local counsel), but the iii) representation of such indemnified party shall bear by the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen retained by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any differing interests between such action include both the indemnified party and the indemnifying party and any other 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 and/or other indemnified parties which are different from or additional to those available to the indemnifying party; party (iii) in which case the indemnifying party shall not have employed counsel satisfactory the right to direct the defense of such action on behalf of the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayed. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, 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 compromise if any pending or threatened proceeding plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. The indemnifying party shall not be liable for any settlement of which any proceeding effected without the written consent of such indemnifying party, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify each indemnified party is from and against any loss or could have been a party and indemnity could have been sought hereunder liability by such indemnified party, unless reason of such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyjudgment.
(d) In Indemnification similar to that specified in this Section 6 (with appropriate modifications) shall be given by the event that Purchaser and the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party Vendor with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal required registration or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which qualification of such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities under any federal or any agents state law or underwriters regulation or all of them were treated as one entity for such purpose) or by any governmental authority other method of allocation which does not take account of than the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the U.S. Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 1 contract
Sources: Asset Sale Agreement (Shannon International Resources Inc)
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesTo the extent permitted by law, the AffiliatesCompany will indemnify Diversified, each of its officers, directors, officersmembers and partners, employees, members, managers and agents of each such Holder and each Person person controlling Diversified, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, each director and controlling person of the Company and each officer of the Company who signed the Registration Statement, and each underwriter, if any, and each person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actunderwriter, to the fullest extent permitted by applicable lawagainst all claims, from and against any and all losses, claims, damages, liabilities, expenses damages and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions actions, proceedings or settlements, if such settlements are effected with the written consent of the Company, in respect thereof) arise arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any prospectus, offering circular or in other document (including any amendment thereofrelated registration statement, notification or the Disclosure Packagelike, any amendments or supplements thereto and any documents incorporated by reference therein) incident to any such registration, qualification or compliance, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Packagenot misleading, or any preliminaryviolation by the Company of the Securities Act or the Exchange Act or any other applicable securities laws or other federal, final state or summary Prospectus common law or Free Writing Prospectus included 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 Statement (in light of the circumstances under which they were made) not misleadingregistration, qualification or compliance, and agrees to will reimburse Diversified, each of its officers, directors, members and partners, and each person controlling Diversified, each such indemnified partydirector, as incurredcontrolling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by them in connection with investigating and defending or defending settling any such claim, loss, claim, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any such case to the extent that any such claim, loss, claim, damage, liability or expense arises (i) out of or is based upon on any such untrue statement or alleged untrue statement or omission made in such registration statement, prospectus, offering circular or alleged omission made therein other document in reliance upon and in conformity with written information furnished to the Company by Diversified or such underwriter and stated to be specifically for use therein. Such indemnity obligation shall remain in full force and effect regardless of any investigation made by or on behalf of any such Holder specifically for inclusion therein including, without limitation, any notice Diversified and questionnaire, or (ii) out of sales shall survive the transfer of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveby Diversified.
(b) Each Holder severally (and not jointly) agrees to To the extent permitted by law, Diversified will indemnify and hold harmless the Company and Company, each of its Affiliates, directors, employeesofficers and controlling persons, members, managers and agents and each Person underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of either the Securities Act or the Exchange ActAct or the rules and regulations thereunder, to the fullest extent permitted by applicable lawagainst all claims, from and against any and all losses, claimsdamages and liabilities (or actions, damages proceedings or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise settlements in respect thereof) arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any such registration statement, prospectus, offering circular or in any amendment thereofother document, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and will reimburse the Company and such directors, officers, members, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, action or proceeding, in each case to the extent, but only to the extent, that any such untrue statement (or alleged untrue statement statement) or omission (or alleged omission omission) is contained made in any such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Holder Diversified and stated to be specifically for inclusion use therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) liability of Diversified hereunder shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) received by Diversified from the sale of Registered Securities as contemplated herein giving rise to such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveliability.
(c) Promptly after receipt by an indemnified Each party entitled to indemnification under this Section 5 of 4 (the “Indemnified Party”) shall give notice of to the commencement party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, such indemnified party will, if a claim in respect thereof is to be made against and shall permit the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, Indemnifying Party to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, unless such settlement, compromise or consent is consented failure to in writing by notify materially adversely affects the Indemnifying Party’s ability to defend such indemnifying party, which consent shall not be unreasonably withheld or delayedaction. No indemnifying partyIndemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partyIndemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or compromise if any pending or threatened proceeding plaintiff to such Indemnified Party of a release from all liability in respect of which 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 the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 4 shall for any indemnified party is reason be unenforceable or could have been a party and indemnity could have been sought hereunder otherwise unavailable by an Indemnified Party, although otherwise available in accordance with its terms, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or payable by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than Indemnified Party as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) respect to which such indemnifying party may be subject Indemnified Party has claimed indemnification, in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnified Party on the one hand and the indemnified party Indemnifying Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefit received by fault, in the Company shall be deemed to be equal to the total value received case of an untrue statement, alleged untrue statement, omission or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offeringalleged omission, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Indemnifying Party or the indemnified party on the other Indemnified Party, and the such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, alleged statement, omission or alleged omission. The parties Company and Diversified agree that it would not be just and equitable if contribution pursuant hereto were to this Section 5(d) were be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the such equitable considerations referred to above in this Section 5(d)considerations. The amount paid or payable by an indemnified party Indemnified Party as a result of the losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to above in this Section 5(d) herein shall be deemed to include any legal fees, charges or other expenses reasonably incurred by such indemnified party Indemnified Party in connection with investigating or defending against any such action or claimclaim which is the subject hereof. Notwithstanding In no case, however, shall Diversified be responsible for a portion of the provisions contribution obligation in excess of this Section 5(d), no Person the net proceeds received by Diversified from the sale of securities as contemplated herein giving rise to such liability. No person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of Anything to the contrary contained in this Section 5 will remain 4 notwithstanding, Diversified shall not be liable for any indemnification or contribution in full force and effect, regardless excess of the net proceeds received by it from any investigation made by or on behalf of any Holder sale of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securitieswhich has been registered hereunder.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees shall, and shall cause each of its Subsidiaries to, jointly and severally, without limitation as to indemnify time, indemnify, defend and hold harmless harmless, to the full extent permitted by law, each Holder holder of Registrable Securities, the Affiliatespartners, members, officers, directors, officersagents, employees, members, managers representatives and agents employees of each such Holder and of them, each Person who controls any each such Holder holder (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act), the partners, members, officers, directors, agents, representatives and employees of each such controlling person and any financial or investment adviser (each, a "Covered Person"), to the fullest extent permitted by applicable lawlawful, from and against any and all losses, claims, damages, liabilities, expenses actions or proceedings (whether commenced or threatened), costs (including costs of preparation and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities attorneys' fees) and expenses (or actions in respect thereofincluding expenses of investigation) arise (collectively, "Losses"), as incurred, arising out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in a any Registration Statement as originally filed Statement, prospectus or form of prospectus or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, supplements thereto or in any amendment thereof or supplement theretopreliminary prospectus, or arise arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, except to the extent that the same arise out of or are based upon information furnished in writing to the Company by such Covered Person or the related holder of Registrable Securities expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and agrees relating to reimburse each such indemnified party, as incurred, for any legal action required of or other expenses reasonably incurred inaction by them the Company in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding)registration; provided, however, provided that the Company will shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any case other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such loss, claim, damage, liability or expense arises (i) Losses arise out of or is are based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity any preliminary prospectus if (i) such Person failed to send or deliver a copy of the prospectus with written information furnished or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (ii) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (iii) the Company has complied with its obligations under Section 3.4(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such Covered Person. 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 Holder specifically for inclusion therein including, without limitation, underwriters (whether or not such underwriter is an Affiliate of any notice and questionnaire, or (iiholder of Registrable Securities) out shall affect the obligations of sales the Company to indemnify any holder of Registrable Securities made during a Suspension Period after notice is given or any other Person pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise havepreceding sentence.
(b) Each Holder In connection with any Registration Statement in which a holder of Registrable Securities is participating, such holder, or an authorized officer of such holder, 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 such holder of Registrable Securities agrees, severally (and not jointly) agrees , to indemnify indemnify, defend and hold harmless to the Company and each of full extent permitted by law, the Company, its Affiliates, directors, officers, agents, representatives and employees, members, managers and agents and each Person who controls the Company (within the meaning of either Section 15 of the Securities Act or and Section 20 of the Exchange Act), to and the fullest extent permitted by applicable lawpartners, members, directors, officers, agents, representatives or employees of such controlling persons, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise Losses arising out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretoprospectus, or arise form of prospectus, or arising out of or are based upon the any omission or alleged omission to state therein of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided that such holder of Registrable Securities shall not be liable in any written such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment or supplement thereto information relating to expressly for use in such Holder Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company by or on behalf failed to include such information therein. In no event shall the liability of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that holder of Registrable Securities hereunder be greater in amount than the total dollar amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to of the net proceeds (after deducting underwriters’ discounts net of payment of all taxes and commissionsexpenses incurred in connection therewith) received by such Holder in holder upon the offering sale of the Registrable Securities giving rise to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveindemnification obligation.
(c) Promptly after receipt by If any Person shall be entitled to indemnity hereunder (an indemnified "Indemnified Party"), such Indemnified Party shall give prompt notice to the party under this Section 5 of notice or parties from which such indemnity is sought (the "Indemnifying Parties") of the commencement of any action, suit, proceeding or investigation or written threat thereof (a "Proceeding") with respect to which such indemnified party will, if a claim in respect thereof is Indemnified Party seeks indemnification or contribution pursuant hereto; provided that the failure to be made against the indemnifying party under this Section 5, so notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will Indemnifying Parties shall not relieve it the Indemnifying Parties from any obligation or liability under paragraph (a) or (b) above except to the extent that the Indemnifying Parties have been prejudiced by such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) abovefailure. The indemnifying party Indemnifying Parties shall be entitled have the right, exercisable by giving written notice to participate therein andan Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such Proceeding, to assume, at the extent that it shall wishIndemnifying Parties' expense, jointly with any other indemnifying party similarly notified, to assume the defense thereofof any such Proceeding, with counsel reasonably satisfactory to such indemnified party Indemnified Party; provided that an Indemnified Party or Parties (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided if more than one such Indemnified Party is named in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party Proceeding) shall have the right to employ its own separate counsel (in any such Proceeding and one local counsel)to participate in the defense thereof, but the indemnified party shall bear the reasonable fees, costs fees and expenses of such separate counsel shall be at the expense of such Indemnified Party or Parties unless (i) the use of counsel chosen by the indemnifying party Indemnifying Parties agree to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; pay such fees and expenses, (ii) the actual Indemnifying Parties fail promptly to assume the defense of such Proceeding or potential defendants infail to employ counsel reasonably satisfactory to such Indemnified Party or Parties, or targets of, (iii) the named parties to any such action Proceeding (including any impleaded parties) include both the indemnified party such Indemnified Party or Parties and the indemnifying party Indemnifying Parties or an Affiliate of the Indemnifying Parties or such Indemnified Parties, and the indemnified party shall have reasonably concluded that there may be legal one or more defenses available to it and/or other indemnified parties which such Indemnified Party or Parties that are different from or additional to those available to the indemnifying party; (iii) Indemnifying Parties, in which case, if such Indemnified Party or Parties notifies the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party Indemnifying Parties in writing that it elects to employ separate counsel at the expense of the indemnifying party. No indemnifying party shallIndemnifying Parties, the Indemnifying Parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Parties, it being understood, however, that, unless there exists a conflict among Indemnified Parties, the Indemnifying Parties shall not, in connection with any one action such Proceeding or separate but substantially similar or related actions Proceedings in the same jurisdiction jurisdiction, arising out of the same general circumstances allegations or allegationscircumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any together with appropriate local counsel) at any time for all indemnified parties unless such Indemnified Party or Parties. Whether or not such defense is assumed by the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party Indemnifying Parties, such Indemnifying Parties or Indemnified Party or Parties shall not be liable under this Section 5 subject to any indemnified party regarding liability for any settlement made without its or compromise or their consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to but such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, which consent shall not be unreasonably withheld or delayedwithheld). No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, The Indemnifying Parties shall not consent to entry of any judgment or enter into any settlement or compromise if any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise (i) includes an unconditional release provides for other than monetary damages without the consent of such indemnified party from all liability on claims that are the subject matter of such proceeding, Indemnified Party or Parties (which consent shall not be unreasonably withheld or delayed) or (ii) does not involve include as an unconditional term thereof the imposition giving by the claimant or plaintiff to such Indemnified Party or Parties of equitable remedies a release, in form and substance satisfactory to the Indemnified Party or the imposition Parties, from all liability in respect of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than as a result of the imposition of financial obligations Proceeding for which such indemnified party will Indemnified Party would be indemnified hereunder and (iii) does not include any statement as entitled to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified partyindemnification hereunder.
(d) In If the event that the indemnity indemnification provided for in this Section 5(a) or Section 5(b) above 3.6 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless an indemnified party with for any Losses in respect to any loss, claim, damage, liability, expense or action referred to hereinof which this Section 3.6 would otherwise apply by its terms, then each applicable Indemnifying Party, in lieu of indemnifying party agrees such Indemnified Party, shall have a joint and several obligation to contribute to the aggregate lossesamount paid or payable by such Indemnified Party as a result of such Losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnifying Party, on the one hand hand, and the indemnified party such Indemnified Party, on the other hand, in connection with the actions, statements or omissions which that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), Losses as well as any other relevant equitable considerations. The relative benefit received by fault of such Indemnifying Party, on the Company shall be deemed to be equal to one hand, and Indemnified Party, on the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offeringother hand, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the any action in question, including any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact fact, has been taken by, or relates to information supplied by the indemnifying party on the one hand by, such Indemnifying Party or the indemnified party on the other Indemnified Party, and the parties’ ' relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 3.6(a) or 3.6(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d3.6(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which that does not take account of the equitable considerations referred to above in this Section 5(d3.6(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d3.6(d), no Person an Indemnifying Party that is a holder of Registrable Securities shall not be required to contribute any amount in excess of the amount by which the net 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 fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 1 contract
Indemnification; Contribution. (aa.) The In the event of a registration of any of the Registrable Securities under the Securities Act pursuant to Sections 2.1, 2.2 or 2.3, the Company agrees to will indemnify and hold harmless each Holder seller of such Registrable SecuritiesSecurities thereunder, the Affiliates, directors, officers, employees, members, managers and agents each underwriter of each such Holder Registrable Securities thereunder and each Person other Person, if any, who controls any such Holder seller or underwriter within the meaning of either the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which such seller, underwriter or controlling Person may become subject under the Securities Act or the Exchange Actotherwise, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, expenses and actions to which they or any of them may become subject insofar as such losses, claims, damagesdamages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities were registered under the Securities Act pursuant to Sections 2.1, 2.2 or 2.3, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, (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, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state or other securities law in connection with the offering covered by such registration statement and the Company will reimburse each such seller, each such underwriter and each such controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action, including amounts paid in settlement thereof; provided, however, that the Company will not be liable in any such case if and to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission which occurs in reliance upon or in connection with written information furnished expressly for use in connection with such registration by any such seller, any such underwriter or any such controlling Person.
(b.) In the event of a registration of any of the Registrable Securities under the Securities Act pursuant to Sections 2.1, 2.2 or 2.3, each seller of such Registrable Securities thereunder, severally and not jointly, will indemnify and hold harmless the Company, each Person, if any, who controls the Company within the meaning of the Securities Act, each officer of the Company who signs the registration statement, each director of the Company, each underwriter and each Person who controls any underwriter within the meaning of the Securities Act, against all losses, claims, damages or liabilities, joint or several, to which the Company or such officer, director, underwriter or controlling Person may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities and expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a any material fact contained in a Registration Statement as originally filed the registration statement under which such Registrable Securities were registered under the Securities Act pursuant to Sections 2.1, 2.2 or in 2.3, any amendment thereof, preliminary prospectus or the Disclosure Packagefinal prospectus contained therein, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement theretothereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to will reimburse the Company and each such indemnified partyofficer, as incurreddirector, underwriter and controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liabilityliability or action, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company such seller will not be liable hereunder in any such case if and only to the extent that any such loss, claim, damage, damage or liability or expense arises (i) out of or is based upon any such an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company expressly for use in connection with such registration by or on behalf of any such Holder specifically for inclusion therein including, without limitationseller, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they such underwriter or any of them may become subject insofar as such lossescontrolling person, claimsand provided, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; providedfurther, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) liability of each seller hereunder shall be limited to the proportion of any such loss, claim, damage, liability or expense which is equal to the proportion that the public offering price of the shares sold by such seller under such registration statement bears to the total public offering price of all securities sold thereunder, but not in any event to exceed the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in seller from the offering to which sale of Registrable Securities covered by such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveregistration statement.
(cc.) Promptly after receipt by an indemnified party under this Section 5 hereunder of notice of the commencement of any action, such indemnified party willshall, if a claim in respect thereof is to be made against the an indemnifying party under this Section 5hereunder, notify the indemnifying party in writing of the commencement thereof; , but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above except which it may have to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than under this Section 2.7 and shall only relieve it from any liability which it may have to such indemnified party under this Section 2.7 if and to the indemnification obligation provided in paragraph (a) or (b) aboveextent the indemnifying party is prejudiced by such omission. The In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein in and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume and undertake the defense thereof, thereof with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 2.7 for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding investigation and of liaison with counsel so selected, provided, however, that, if the indemnifying party’s rights defendants in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal reasonable defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) party or if the indemnifying party shall not have employed counsel satisfactory to interests of the indemnified party reasonably may be deemed to represent conflict with the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense interests of the indemnifying party. No , the indemnified party shall have the right to select a separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified partyas incurred. An The indemnifying party shall not be liable under this Section 5 to indemnify any indemnified party regarding for any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not action effected without the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying party, ’s consent (which consent shall not be unreasonably withheld or delayed). No The indemnifying party, in the defense of any such claim or litigation, shallparty shall not, except with the consent approval of each party being indemnified partyunder this Section 2.7(c), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving of the claimant or compromise if any pending or threatened proceeding the plaintiff to the parties being so indemnified of a release from all liability in respect of to such claim or litigation.
(d.) In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement or compromise either (i) includes an unconditional release any holder of such indemnified party from all liability on claims that are the subject matter of such proceedingRegistrable Securities exercising rights under this Agreement, (ii) does not involve the imposition of equitable remedies or the imposition any controlling Person of any obligations on such indemnified partyholder, and does not otherwise adversely affect such indemnified party, other than as makes a result claim for indemnification pursuant to this Section 2.7 but it is judicially determined (by the entry of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to a final judgment or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be unavailable to enforced in such case notwithstanding the fact that this Section 2.7 provides for indemnification in such case, or insufficient to hold harmless an indemnified party with respect to (ii) contribution under the Securities Act may be required on the part of any losssuch selling holder or any such controlling Person in circumstances for which indemnification is otherwise required under this Section 2.7; then, claimand in each such case, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to the Company and such holder will contribute to the aggregate losses, claims, damages and or liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Company on the one hand and of the indemnified party holder of Registrable Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof)liabilities, as well as any other relevant equitable considerations. The considerations or, if the allocation provided herein is not permitted by applicable law, in such proportion as shall be appropriate to reflect the relative benefit benefits received by the Company shall be deemed to be equal to and any holder of Registrable Securities from the total value received or proposed to be received (after deducting expenses) offering of the securities covered by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if anysuch registration statement. The relative fault of the Company on the one hand and of the holder of Registrable Securities on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party Company on the one hand or by the indemnified party holder of Registrable Securities on the other other, and the parties’ each party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties agree that ; provided, however, that, in any such case, (A) no such holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered by it would not be just and equitable if contribution pursuant to this Section 5(d) were determined such registration statement, but not in any event to exceed the net proceeds received by pro rata allocation (even if such seller from the Holders sale of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 5(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5(d) shall be deemed to include any legal or other expenses reasonably incurred covered by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5(d), registration statement; and (B) no Person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall will be entitled to contribution from any Person who was not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director .
(e.) The obligations of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of Holders under this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless 2.7 shall survive the completion of any investigation made by or on behalf of any Holder offering of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in a registration statement under this Section 5, 2 and will shall survive the transfer termination of Registrable Securitiesthis Agreement.
Appears in 1 contract
Indemnification; Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Registrable SecuritiesTo the extent permitted by law, the AffiliatesCompany will indemnify each Holder, each of its officers, directors, officersmembers and partners, employees, members, managers and agents of each such Holder and each Person person controlling such Holder, with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, each director and controlling person of the Company and each officer of the Company who signed the registration statement, and each underwriter, if any, and each person who controls any such Holder within the meaning of either the Securities Act or the Exchange Actunderwriter, to the fullest extent permitted by applicable lawagainst all claims, from and against any and all losses, claims, damages, liabilities, expenses damages and actions to which they or any of them may become subject insofar as such losses, claims, damages, liabilities and expenses (or actions actions, proceedings or settlements, if such settlements are effected with the written consent of the Company, in respect thereof) arise arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any prospectus (preliminary, free-writing or in final), offering circular or other document (including any amendment thereofrelated registration statement, notification or the Disclosure Packagelike) incident to any such registration, qualification or compliance, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Packagenot misleading, or any preliminary, final violation by the Company of the Securities Act or summary Prospectus the Exchange Act or Free Writing Prospectus included any other applicable securities laws or 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 Statement (in light of the circumstances under which they were made) not misleadingregistration, qualification or compliance, and agrees to will reimburse each such indemnified partyHolder, as incurredeach of its officers, directors, members and partners, and each person controlling such Holder, each such director, controlling person and officer, each such underwriter and each person who controls any such underwriter, for any legal or and any other expenses reasonably incurred by them in connection with investigating and defending or defending settling any such claim, loss, claim, damage, liability, expense action or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any such case to the extent that any such claim, loss, claim, damage, liability or expense arises (i) out of or is based upon on any such untrue statement or alleged untrue statement or omission made in such registration statement, prospectus, offering circular or alleged omission made therein other document in reliance upon and in conformity with written information furnished to the Company by or on behalf of any such Holder or underwriter and stated to be specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise haveuse therein.
(b) Each To the extent permitted by law, each Holder severally (and not jointly) agrees will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify and hold harmless the Company and Company, each of its Affiliates, directors, employeesofficers and controlling persons, members, managers and agents and each Person underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of either the Securities Act or the Exchange ActAct or the rules and regulations thereunder, each other such Holder and Other Stockholder (if and to the fullest extent permitted by applicable lawsuch Other Stockholder has agreed to indemnify the Holders as set forth in this clause (b)) including Registrable Securities and other securities in the securities as to which such registration, from qualification or compliance is being effected, and each of their officers, directors, members and partners, and each person controlling such Holder or Other Stockholder, against any and all claims, losses, claimsdamages and liabilities (or actions, damages proceedings or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise settlements in respect thereof) arising out of or are based upon on any untrue statement (or alleged untrue statement statement) of a material fact contained in a Registration Statement as originally filed any such registration statement, prospectus, offering circular or in any amendment thereofother document, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission (or alleged omission omission) to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, and will reimburse the Company and such Holders, Other Stockholders, directors, officers, members, partners, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, loss, damage, liability, action or proceeding, in each case to the extent, but only to the extent, that any such untrue statement (or alleged untrue statement statement) or omission (or alleged omission omission) is contained made in any such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information relating to such Holder furnished to the Company by or on behalf of such Holder and stated to be specifically for inclusion use therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by obligations of each such Holder pursuant to this Section 5(b) hereunder shall be limited to an amount equal to the net proceeds (after deducting underwriters’ discounts and commissions) received by to each such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveof securities sold as contemplated herein.
(c) Promptly after receipt by an indemnified Each party entitled to indemnification under this Section 5 of 7 (the “Indemnified Party”) shall give notice of to the commencement party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any actionclaim as to which indemnity may be sought, such indemnified party will, if a claim in respect thereof is to be made against and shall permit the indemnifying party under this Section 5, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above except to the extent such action and such failure materially prejudices the indemnifying party; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, Indemnifying Party to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement, unless such settlement, compromise or consent is consented failure to in writing by notify materially adversely affects the Indemnifying Party’s ability to defend such indemnifying party, which consent shall not be unreasonably withheld or delayedaction. No indemnifying partyIndemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified partyIndemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or compromise if any pending or threatened proceeding plaintiff to such Indemnified Party of a release from all liability in respect of which 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 the defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 7 shall for any indemnified party is reason be unenforceable by an Indemnified Party, although otherwise available in accordance with its terms, then each Indemnifying Party shall, in lieu of indemnifying such Indemnified Party, contribute to the amount paid or could have been a party and indemnity could have been sought hereunder payable by such indemnified party, unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, (ii) does not involve the imposition of equitable remedies or the imposition of any obligations on such indemnified party, and does not otherwise adversely affect such indemnified party, other than Indemnified Party as a result of the imposition of financial obligations for which such indemnified party will be indemnified hereunder and (iii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 5(a) or Section 5(b) above is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and damages, liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) respect to which such indemnifying party may be subject Indemnified Party has claimed indemnification, in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party Indemnified Party on the one hand and the indemnified party Indemnifying Party on the other in connection with the statements or omissions which resulted in such losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof)expenses, as well as any other relevant equitable considerations. The relative benefit received by fault, in the Company shall be deemed to be equal to the total value received case of an untrue statement, alleged untrue statement, omission or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offeringalleged omission, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference toby, among other things, whether the untrue or such statement, alleged untrue statement of a material fact or the statement, omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand Indemnifying Party or the indemnified party on the other Indemnified Party, and the such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement statement, alleged statement, omission or alleged omission. The parties Company and each Holder agree that it would not be just and equitable if contribution pursuant hereto were to this Section 5(d) were be determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the such equitable considerations referred to above in this Section 5(d)considerations. The amount paid or payable by an indemnified party Indemnified Party as a result of the losses, claims, damages damages, liabilities or liabilities (or actions in respect thereof) expenses referred to above in this Section 5(d) herein shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party Indemnified Party in connection with investigating or defending against any such action or claimclaim which is the subject hereof. Notwithstanding In no case, however, shall a Holder be responsible for a portion of the provisions contribution obligation in excess of this Section 5(d), no Person the net proceeds to such Holder of securities sold as contemplated herein. No person guilty of fraud or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person person who was is not guilty of such fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of Anything to the contrary contained in this Section 5 will remain 7 notwithstanding, (i) no Holder shall be liable for any indemnification or contribution in full force and effect, regardless excess of the net proceeds received by it from any investigation made by or on behalf of any Holder sale of Registrable Securities or the Company or any which has been registered hereunder and (ii) all indemnification and contribution obligations of the officers, directors or controlling Persons referred to in this Section 5, Holders shall be several and will survive the transfer of Registrable Securitiesnot joint.
Appears in 1 contract
Sources: Registration Rights Agreement (Fairway Group Holdings Corp)
Indemnification; Contribution. (a) The Company shall, and it hereby agrees to to, indemnify and hold harmless each Holder of Registrable Securities, the AffiliatesParticipating Investor and its officers, directors, employees and controlling Persons, if any, and each underwriter, its partners, officers, employeesdirectors, membersemployees and controlling Persons, managers and agents if any, in any offering or sale of each such Holder and each Person who controls any such Holder within the meaning of either the Securities Act or the Exchange ActRegistrable Shares, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, expenses and actions damages or liabilities to which they or any of them each such indemnified party may become subject subject, insofar as such losses, claims, damagesdamages or liabilities, liabilities and expenses (or actions or proceedings in respect thereof) , including any amounts paid in settlement as provided in this Agreement (collectively, Claims), arise out of or are based upon any an untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Packageregistration statement, or any preliminary, preliminary or final or summary Prospectus or Free Writing Prospectus included in any such Registration Statementprospectus contained therein, or in any amendment thereof or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, and the Company shall, and it hereby agrees to, reimburse each Participating Investor or any such underwriter for any legal or other out-of-pocket expenses reasonably incurred by it in connection with investigating or defending any such Claims; provided, however, that the Company shall not be liable to any such Person in any such case to the extent that any such Claims arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary or final prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Participating Investor or any underwriter expressly for use therein; and provided, further, that the Company will not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Securities or any other Person, if any, who controls such underwriter with respect to any preliminary or final prospectus contained therein, or any amendment or supplement thereto, to the extent that any Claim of such underwriter or controlling Person results from the fact that such underwriter sold Registrable Securities to a Person to whom there was not sent or given (to the extent legally required), at or prior to the written confirmation of such sale, a copy of the final prospectus or of the final prospectus as then amended or supplemented, whichever is most recent, if the Company has previously furnished copies thereof to such underwriter.
(b) Each Participating Investor shall, and hereby agrees to (1) indemnify and hold harmless each of the Company, each other Participating Investor and their respective directors, officers, employees and controlling Persons, if any, and each underwriter, its partners, officers, directors, employees and controlling Persons, if any, in any offering or sale of Registrable Shares, against any Claims to which each such indemnified party may become subject, insofar as such Claims arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary or final prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement (in light of the circumstances under which they were made) not misleading, and agrees to reimburse in each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case only to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Participating Investor expressly for use therein, and (2) reimburse the Company for any legal or other out-of-pocket expenses reasonably incurred by the Company in connection with investigating or defending any such Holder specifically for inclusion therein including, without limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made during a Suspension Period after notice is given pursuant to Section 1(f)(ii) hereof. This indemnity clause will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages or liabilities to which they or any of them may become subject insofar as such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, including, without limitation, any notice and questionnaire; provided, however, that the total amount to be indemnified by such Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement, Disclosure Package, Prospectus or Holder Free Writing Prospectus relates. This indemnity clause will be in addition to any liability which any such Holder may otherwise haveClaim.
(c) Promptly after receipt by an indemnified party under this Section 5 6.5(a) or Section 6.5(b) of written notice of the commencement of any actionaction or proceeding for which indemnification under Section 6.5(a) or Section 6.5(b) may be requested, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, shall notify the indemnifying party in writing of the commencement thereof; of such action or proceeding, but the failure omission so to notify the indemnifying party (i) will shall not relieve it from any liability under paragraph (a) or (b) above except which it may have to the extent any indemnified party in respect of such action and or proceeding hereunder unless the indemnifying party was materially prejudiced by such failure materially prejudices of the indemnifying party; indemnified party to give such notice, and (ii) will not, in any event, no event shall such omission relieve the indemnifying party from any obligations other 1iability it may have to such indemnified party. In case any such action or proceeding shall be brought against any indemnified party other than and it shall notify an indemnifying party of the indemnification obligation provided in paragraph (a) or (b) above. The commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wishdetermine, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election so to so assume the defense thereof, the such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right If there exists or is reasonably likely to employ its own counsel (and one local counsel), but the indemnified party shall bear the reasonable fees, costs and expenses of such separate counsel unless (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would be inappropriate due to exist a conflict of interest that would make it inappropriate under applicable standards of professional conduct in the reasonable judgment of the indemnified party; (ii) party for the actual or potential defendants in, or targets of, any such action include same counsel to represent both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) if the indemnifying party shall elects not have employed counsel satisfactory to assume the indemnified party defense of a claim, it will not be obligated to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party in writing to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for pay the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) counsel for all indemnified parties unless the use of only one firm of attorneys would be inappropriate due to a conflict of interest in the reasonable judgment of the indemnified party. An indemnifying party shall not be liable under this Section 5 to any each indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding such claim in respect of each jurisdiction for which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties party reasonably determines counsel is necessary. The indemnifying party will not be subject to such claim or action) unless such settlement, compromise or consent is consented to in writing by such indemnifying partyany liability for any settlement made without its consent, which consent shall not be unreasonably withheld or delayedwithheld. No indemnifying party, in the defense of any such claim or litigation, party shall, except with without the prior written consent of each the indemnified party, compromise or consent to entry of any judgment or enter into any settlement agreement with respect to any action or compromise if any pending or threatened proceeding in respect of which any indemnification is sought under Section 6.5(a) or Section 6.5(b) (whether or not the indemnified party is an actual or could have been a potential party and indemnity could have been sought hereunder by such indemnified partythereto), unless such compromise, consent or settlement or compromise (i) includes an unconditional release of such the indemnified party from all liability on claims that are the subject matter in respect of such proceeding, (ii) does not involve the imposition of equitable remedies claim or the imposition of any obligations on such indemnified party, litigation and does not otherwise adversely affect such subject the indemnified partyparty to any injunctive relief or other equitable remedy.
(d) Each Participating Investor and the Company agree that if, for any reason, the indemnification provisions contemplated by Sections 6.5(a) or Section 6.5(b) are unavailable to or are insufficient to hold harmless an indemnified party in respect of any Claims referred to therein (other than as a result of the imposition of financial obligations for which provisos thereto), then each indemnifying party shall contribute to the amount paid or payable by such indemnified party will be indemnified hereunder as a result of such Claims in such proportion as is appropriate to reflect the relative fault of and (iii) does not include any statement as to or any admission of faultbenefits derived by the indemnifying party, culpability or a failure to act by or on behalf of any the one hand, and the indemnified party.
(d) In , on the event other hand, as well as other equitable considerations, or if that the indemnity provided in Section 5(a) or Section 5(b) above allocation is held by a court of competent jurisdiction to be unavailable to or insufficient to hold harmless an indemnified party with respect to any loss, claim, damage, liability, expense or action referred to herein, not permitted under applicable law then each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages and liabilities (including, without limitation, legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which such indemnifying party may be subject in such proportion as is appropriate to reflect the relative benefits received from the offering of the Securities, as applicable, and relative fault of the indemnifying party on the one hand and the indemnified party on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefit received by the Company shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Company pursuant to the sale of Securities in an offering, if any. The relative benefit received by the Holders shall be deemed to be equal to the total value received or proposed to be received (after deducting expenses) by the Holders of Securities in an offering, if any. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party on the one hand or the indemnified party on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omissionParticipating Investors. The parties agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take into account of the equitable considerations referred to above in this Section 5(d)paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) Claims referred to above in this Section 5(d) shall be deemed to include (subject to the limitations set forth in Section 6.5(c)) any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action action, proceeding or claim. Notwithstanding the provisions of this Section 5(d), no No Person guilty of fraud or 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 fraud or fraudulent misrepresentation. For purposes of this Section 5, each Person who controls any Holder of Registrable Securities, agent or underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to contribution as such Holder, agent or underwriter, and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act and each officer and director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this Section 5(d).
(e) The provisions of this Section 5 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or any of the officers, directors or controlling Persons referred to in this Section 5, and will survive the transfer of Registrable Securities.
Appears in 1 contract