Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 6 contracts

Samples: Securities Purchase Agreement (Spectre Gaming Inc), Securities Purchase Agreement (Silverstar Holdings LTD), Securities Purchase Agreement (Us Dataworks Inc)

Appears in 6 contracts

Samples: Securities Purchase Agreement (Validian Corp), Securities Purchase Agreement (Implant Sciences Corp), Securities Purchase Agreement (Medistem Laboratories, Inc.)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and ~~expenses~~expenses (collectively, “Losses”), including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action ~~there is~~the Purchaser Party reasonable concludes that, in either (x) one or more defenses are available to the ~~reasonable opinion of such separate counsel,~~ Purchaser Party that are not available to the Company or (y) a ~~material~~ conflict ~~on any material issue~~ or potential conflict exists between the ~~position of~~ Company, on the ~~Company~~ one hand, and ~~the position of~~ such Purchaser Party, on the other hand, that would make such separate representation advisable. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 5 contracts

Samples: Securities Purchase Agreement (Callisto Pharmaceuticals Inc), Securities Purchase Agreement (Callisto Pharmaceuticals Inc), Securities Purchase Agreement (Callisto Pharmaceuticals Inc)

Appears in 5 contracts

Samples: Securities Purchase Agreement (Morgan Beaumont Inc), Securities Purchase Agreement (Galaxy Energy Corp), Securities Purchase Agreement (Morgan Beaumont Inc)

Appears in 5 contracts

Samples: Securities Purchase Agreement (GTC Biotherapeutics Inc), Securities Purchase Agreement (Geokinetics Inc), Securities Purchase Agreement (Xfone Inc)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 5 contracts

Samples: Securities Purchase Agreement (Aprecia Inc), Securities Purchase Agreement (Aprecia Inc), Securities Purchase Agreement (DDS Technologies Usa Inc)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 4 contracts

Samples: Securities Purchase Agreement (Sunburst Acquisitions Iv Inc), Securities Purchase Agreement (Diomed Holdings Inc), Securities Purchase Agreement (Matritech Inc/De/)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.12, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 4 contracts

Samples: Securities Purchase Agreement (Path 1 Network Technologies Inc), Subscription Agreement (Metron Technology N V), Securities Purchase Agreement (Path 1 Network Technologies Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 4 contracts

Samples: Securities Purchase Agreement (Matritech Inc/De/), Securities Purchase Agreement (Matritech Inc/De/), Securities Purchase Agreement (Riviera Tool Co)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 4 contracts

Samples: Common Stock Purchase Agreement (Chez Ronald L), Securities Purchase Agreement (Cinedigm Corp.), Securities Purchase Agreement (Chez Ronald L)

Appears in 3 contracts

Samples: Securities Purchase Agreement (Cyberkinetics Neurotechnology Systems, Inc.), Securities Purchase Agreement (Insignia Systems Inc/Mn), Securities Purchase Agreement (Acies Corp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.12, each party (the ~~Company~~ "INDEMNIFYING PARTY") will indemnify and hold the ~~Purchasers~~ other parties and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a an "~~Purchaser Party~~INDEMNIFIED PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such ~~Purchaser~~ Indemnified Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the ~~Company~~ Indemnifying Party in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any ~~Purchaser~~ Indemnified Party in respect of which indemnity may be sought pursuant to this Agreement, such ~~Purchaser~~ Indemnified Party shall promptly notify the ~~Company~~ Indemnifying Party in writing, and the ~~Company~~ Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing. Any ~~Purchaser~~ Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such ~~Purchaser~~ Indemnified Party except to the extent that (i) the employment thereof has been specifically authorized by the ~~Company~~ Indemnifying Party in writing, (ii) the ~~Company~~ Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the ~~Company~~ Indemnifying Party and the position of such ~~Purchaser~~ Indemnified Party. The ~~Company~~ Indemnifying Party will not be liable to any ~~Purchaser~~ Indemnified Party under this Agreement (i) for any settlement by ~~a Purchaser~~ an Indemnified Party effected without the ~~Company~~Indemnifying Party's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any ~~Purchaser~~ Indemnified Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. In no event shall the liability of any Purchaser hereunder be greater in amount than the dollar amount of the net proceeds received by such Purchaser upon the sale of the Securities; provided that this provision shall not limit the Company's rights and remedies under any other provision pursuant to this Agreement, including but not limited to, the Company's rights under Section 5.15.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Svi Solutions Inc), Securities Purchase Agreement (Island Pacific Inc), Securities Purchase Agreement (Svi Solutions Inc)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, ~~shareholders, members~~stockholders, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Knockout Holdings, Inc.), Securities Purchase Agreement (Knockout Holdings, Inc.), Securities Purchase Agreement (Knockout Holdings, Inc.)

Indemnification of Purchasers. ~~Subject to the provisions of this Section 4.11, the~~ The Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a ~~material~~ conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Linux Gold Corp), Securities Purchase Agreement (Practicexpert Inc), Securities Purchase Agreement (Practicexpert Inc)

Appears in 3 contracts

Samples: Securities Purchase Agreement (Armor Electric, Inc.), Securities Purchase Agreement (GMX Resources Inc), Securities Purchase Agreement (Vision Sciences Inc /De/)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.4, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, ~~contingencies,~~ damages, costs and expenses, including all judgments, amounts paid in ~~settlements~~settlements (subject to the provisions below), court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or ~~in the other Transaction Documents or~~ (b) any action instituted against a Purchaser, or any of ~~them or~~ their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; , or (ii) to the extent, but only to the extent that a loss, claim, ~~damage~~ damage, judgment or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Synova Healthcare Group Inc), Securities Purchase Agreement (Synova Healthcare Group Inc), Securities Purchase Agreement (Synova Healthcare Group Inc)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any ~~such~~ Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of ~~such~~ the Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of ~~such~~ the Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings ~~such~~ the Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by ~~such~~ the Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, ~~such~~ the Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of ~~such~~ the Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of ~~such~~ the Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the ~~Purchasers~~ Purchaser in this Agreement or in the other Transaction Documents.

Appears in 3 contracts

Samples: Securities Purchase Agreement (CDX Com Inc), Securities Purchase Agreement (Airguide, Inc.), Securities Purchase Agreement (Pipeline Data Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.7, the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees of such controlling persons (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, ~~and~~ and, the Company shall have the right to assume the defense thereof with counsel of its own ~~choosing~~choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of ~~such separate counsel,~~ counsel a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (iy) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (iiz) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements ~~made by the Purchasers~~ in this Agreement or ~~in the~~ other Transaction Documents. The indemnification required by this Section 4.7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.

Appears in 3 contracts

Samples: Securities Purchase Agreement (ReTo Eco-Solutions, Inc.), Securities Purchase Agreement (ReTo Eco-Solutions, Inc.), Form of Securities Purchase Agreement (Infobird Co., LTD)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by ~~the~~ such Purchaser of state or federal securities laws or any conduct by ~~such~~ Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 3 contracts

Samples: Securities Purchase Agreement (World Waste Technologies Inc), Securities Purchase Agreement (World Waste Technologies Inc), Securities Purchase Agreement (Intraop Medical Corp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9, the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may ~~suffer~~ suffer, incur or ~~incur~~ become subject to insofar as ~~a result~~ such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or ~~relating to~~ are based upon (a) any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time, any Time of Sale Prospectus as of any time, General Disclosure Package, the Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, (b) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (bc) any action instituted against ~~a Purchaser~~the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such ~~Purchaser~~Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such ~~Purchaser's~~ Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by ~~the~~ such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance)) and will reimburse each Purchaser Party for reasonable legal or other expenses reasonably incurred by such Purchaser Party in connection with defending against any loss, expense, damage, liability or Proceeding whatsoever. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own ~~choosing~~choosing reasonably acceptable to the Purchaser Party, but the failure to notify the Company shall not relieve it from liability that it may have under this Section 4.9 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the ~~employment thereof has been specifically authorized by the Company in writing, (ii) the~~ Company has failed after a reasonable period of time to assume such defense and to employ counsel or (~~iii~~ii) in such action there is, in the reasonable opinion of ~~such separate~~ counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company shall not, without the prior written consent of the Purchaser Party, which consent shall not be unreasonably withheld or delayed, effect any settlement of any pending or threatened action in respect of which any Purchaser Party is or could have been a party and indemnity could have been sought hereunder by such Purchaser Party unless such settlement (i) includes an unconditional release of such Purchaser Party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission of, fault, culpability, or a failure to act by or on behalf of a Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (iy) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (iiz) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by ~~the Purchasers~~ such Purchaser Party in this Agreement or in the other Transaction ~~Documents~~Documents or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law; provided, however, that no Purchaser shall be entitled to any double recovery of damages as a result of the exercise of any other such right.

Appears in 3 contracts

Samples: Securities Purchase Agreement (Nova Lifestyle, Inc.), Securities Purchase Agreement (Applied Dna Sciences Inc), Securities Purchase Agreement (Applied Dna Sciences Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.13, the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and their respective directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Hollis Eden Pharmaceuticals Inc /De/), Securities Purchase Agreement (Hollis Eden Pharmaceuticals Inc /De/)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9, the Company will indemnify and hold the Purchasers and their directors, officers, ~~shareholders~~stockholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Emagin Corp), Securities Purchase Agreement (Emagin Corp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~5.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (North American Technologies Group Inc /Mi/), Securities Purchase Agreement (North American Technologies Group Inc /Mi/)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~8.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, employees, managers, members, ~~partners, employees~~ investment managers and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes ~~fraud, gross negligence,~~ fraud or willful ~~misconduct or malfeasance~~misconduct). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Forbes Medi Tech Inc), Securities Purchase Agreement (Forbes Medi Tech Inc)

Indemnification of Purchasers. ~~Subject~~ The Company shall indemnify, to the ~~provisions of this Section 4.11~~fullest extent lawful, ~~the Company will indemnify~~ and hold ~~the Purchasers~~ harmless (a) each Purchaser and ~~their directors, officers, shareholders, members, partners, employees~~ Related Person from and ~~agents (each, a "Purchaser Party") harmless from~~ against any and all ~~losses~~Losses, ~~liabilities~~as incurred, ~~obligations~~directly or indirectly arising out of, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of based upon or relating to (ai) any breach by the Company of any of the representations, ~~warranties,~~ warranties or covenants ~~or agreements~~ made by the Company in this Agreement or ~~in the~~ any other Transaction ~~Documents or (b) any action instituted against a Purchaser~~Document, or any ~~of them or their respective Affiliates~~allegation by a third party that, ~~by any stockholder of the Company who is not an Affiliate of~~ if true, would constitute such ~~Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon~~ a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) ~~to the extent~~any Proceeding brought by or against any Person, ~~but only to the extent that~~ directly or indirectly, in connection with or as a ~~loss, claim, damage or liability is attributable to any Purchaser Party's breach~~ result of any of the ~~representations~~Transactions, ~~warranties~~and (b) each Initial Purchaser from and against any and all Losses, ~~covenants~~ as incurred, directly or ~~agreements made by the Purchasers~~ indirectly arising out of, base upon or relating to (i) any untrue statement or alleged untrue statement of a material fact contained in this Agreement or ~~in the~~ any other Transaction ~~Documents~~Document or the Offering Memorandum (as hereinafter defined) or arising out of or based upon the omission or alleged omission to state in this Agreement, the Offering Memorandum or any other Transaction Document a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) any termination by the Company of, or failure by the Company to consummate the Transactions. The indemnification and expense reimbursement obligations of the Company under this paragraph shall be in addition to any liability that the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the applicable Purchasers and any such Related Persons of such Purchasers. If the Company breaches its obligations under any Transaction Document, then, in addition to any other liabilities the Company may have under any Transaction Document or applicable law, the Company shall pay or reimburse the Purchasers on demand for all costs of collection and enforcement (including reasonable attorneys fees and expenses). Without limiting the generality of the foregoing, the Company specifically agrees to reimburse the Purchasers on demand for all costs of enforcing the indemnification obligations in this paragraph.

Appears in 2 contracts

Samples: Preferred Stock Purchase Agreement (Ares Corporate Opportunities Fund Lp), Preferred Stock Purchase Agreement (Hanger Orthopedic Group Inc)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action such Purchaser Party has been advised in writing that there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction ~~Documents~~Documents or any agreement or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Cytrx Corp), Securities Purchase Agreement (Cytrx Corp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.6, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "~~Purchaser Party~~PURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Able Energy Inc), Securities Purchase Agreement (Able Energy Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.8, the Company will indemnify and hold ~~the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "~~each Purchaser ~~Party")~~ harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser ~~Party~~ may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a ~~Purchaser~~Purchaser in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by ~~the~~ such Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser ~~Party~~ in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser ~~Party~~ shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own ~~choosing~~choosing reasonably acceptable to the Purchaser. Any Purchaser ~~Party~~ shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser ~~Party~~ except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of ~~such separate~~ counsel, a material conflict on any material issue between the position of the Company and the position of such ~~Purchaser Party~~Purchaser, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser ~~Party~~ under this Agreement (iy) for any settlement by a Purchaser ~~Party~~ effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (iiz) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any ~~Purchaser Party's~~ Purchaser’s breach of any of the representations, warranties, covenants or agreements made by ~~the Purchasers~~ such Purchaser in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser against the Company or others and any liabilities the Company may be subject to pursuant to law.

Appears in 2 contracts

Samples: Securities Purchase Agreement (NovaBay Pharmaceuticals, Inc.), Securities Purchase Agreement (NovaBay Pharmaceuticals, Inc.)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9(a), the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "~~Purchaser Party~~PURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Genius Products Inc), Securities Purchase Agreement (Genius Products Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~5.11, each party (the ~~Company~~ "INDEMNIFYING Party") will indemnify and hold the ~~Purchasers~~ other parties and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a an "~~Purchaser Party~~INDEMNIFIED PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such ~~Purchaser~~ Indemnified Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the ~~Company~~ Indemnifying Party in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any ~~Purchaser~~ Indemnified Party in respect of which indemnity may be sought pursuant to this Agreement, such ~~Purchaser~~ Indemnified Party shall promptly notify the ~~Company~~ Indemnifying Party in writing, and the ~~Company~~ Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing. Any ~~Purchaser~~ Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such ~~Purchaser~~ Indemnified Party except to the extent that (i) the employment thereof has been specifically authorized by the ~~Company~~ Indemnifying Party in writing, (ii) the ~~Company~~ Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the ~~Company~~ Indemnifying Party and the position of such ~~Purchaser~~ Indemnified Party. The ~~Company~~ Indemnifying Party will not be liable to any ~~Purchaser~~ Indemnified Party under this Agreement (i) for any settlement by ~~a Purchaser~~ an Indemnified Party effected without the ~~Company~~Indemnifying Party's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any ~~Purchaser~~ Indemnified Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. In no event shall the liability of any Purchaser hereunder be greater in amount than the dollar amount of the net proceeds received by such Purchaser upon the sale of the Securities.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Galaxy Energy Corp), Securities Purchase Agreement (Galaxy Energy Corp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there ~~is, in the reasonable opinion of such separate counsel,~~ is a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Workstream Inc), Securities Purchase Agreement (Workstream Inc)

Appears in 2 contracts

Samples: Securities Purchase Agreement (Tripath Technology Inc), Securities Purchase Agreement (Tripath Technology Inc)

Indemnification of Purchasers. ~~Subject to the provisions of this Section 4.11, the~~ The Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, managers, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction ~~Documents~~ Agreements or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction ~~Documents~~ Agreements (unless such action is based upon a breach by such Purchaser of ~~such Purchaser's~~ its representations, warranties or covenants under the Transaction ~~Documents~~ Agreements or any agreements or understandings such Purchaser may have with any such stockholder or any violations by ~~the~~ such Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own ~~choosing~~choosing and to control any settlement of the claim; provided, however, that the Company will not settle any claim unless it first obtains the consent of the relevant Purchaser Parties, which consent shall not be unreasonably withheld if such settlement (i) does not require the Purchaser Parties to make any payment that is not indemnified under this Agreement, (ii) does not impose any non-financial obligations on the Purchaser Parties and (iii) does not require an acknowledgment of wrongdoing on the part of the Purchaser Parties. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or ~~delayed~~delayed (it being agreed that it shall not be unreasonable for the Company to withhold or delay such consent if the Company (x) has acknowledged in writing its obligation to indemnify such Purchaser Party with respect to such matter, (y) the Company has assumed and is actively and in good faith pursuing the defense of such matter as herein provided, and (z) provided to such Purchaser Party reasonably acceptable evidence that the Company is able to comply with its indemnification obligations hereunder); or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to ~~any~~ such Purchaser Party's ’s wrongful actions or omissions, or gross negligence or to such Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by ~~the Purchasers~~ such Purchaser in this Agreement or in the other Transaction ~~Documents~~Agreements.

Appears in 2 contracts

Samples: Note Purchase and Warrant Agreement (AskMeNow,Inc.), Note Purchase and Warrant Agreement (Bond Laboratories, Inc.)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation collectively, (collectively, "Loss") that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Ramp Corp), Securities Purchase Agreement (Ramp Corp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~3.4, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, ~~contingencies,~~ damages, costs and expenses, including all judgments, amounts paid in ~~settlements~~settlements (subject to the provisions below), court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or ~~in the other Transaction Documents or~~ (b) any action instituted against a Purchaser, or any of ~~them or~~ their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser or any other Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel (assuming an obligation to so assume the defense) or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; , or (ii) to the extent, but only to the extent that a loss, claim, ~~damage~~ damage, judgment or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Manas Petroleum Corp), Securities Purchase Agreement (Express Systems Corp)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any ~~stockholder~~ shareholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such ~~stockholder~~ shareholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (New Dragon Asia Corp), Securities Purchase Agreement (New Dragon Asia Corp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.7, the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees of such controlling persons (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, ~~and~~ and, the Company shall have the right to assume the defense thereof with counsel of its own ~~choosing~~choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of ~~such separate counsel,~~ counsel a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (iy) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (iiz) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements ~~made by the Purchasers~~ in this Agreement or ~~in the~~ other Transaction Documents. The indemnification required by this Section 4.7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.

Appears in 2 contracts

Samples: Securities Purchase Agreement (EZGO Technologies Ltd.), Securities Purchase Agreement (EZGO Technologies Ltd.)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including without limitation all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against (i) a Purchaser, or any of them or their respective ~~Affiliates~~Affiliates or (ii) a Purchaser Party, by any ~~stockholder~~ shareholder of the Company who is not an Affiliate of such ~~Purchaser~~Purchaser or Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, ~~warranties~~ warranties, covenants or ~~covenants~~ agreements under the Transaction Documents or any agreements or understandings such Purchaser or a Purchaser Party may have with any such ~~stockholder~~ shareholder or any violations by the Purchaser or a Purchaser Party of state or federal securities laws or any conduct by such Purchaser or a Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Verticalnet Inc), Securities Purchase Agreement (Verticalnet Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.4, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Sub-Urban Brands, Inc.), Securities Purchase Agreement (Sub-Urban Brands, Inc.)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "~~Purchaser Party~~PURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Access Integrated Technologies Inc), Securities Purchase Agreement (Cirond Corp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all out-of-pocket losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not a Purchaser or an Affiliate of ~~such~~ a Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Exabyte Corp /De/), Securities Purchase Agreement (Exabyte Corp /De/)

Appears in 2 contracts

Samples: Securities Purchase Agreement (Mdi, Inc.), Securities Purchase Agreement (Spatialight Inc)

Indemnification of Purchasers. ~~Subject~~ Unless such action is based upon a breach of such Purchaser’s representation, warranties or covenants under the Transaction Documents or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance (collectively, “Non-Indemnifiable Claims”) and subject to the provisions of this Section ~~4.11~~4.5, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (~~each,~~ each a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the ~~Purchaser~~ Company of state or federal securities ~~laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)~~laws. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing, which counsel shall be reasonably acceptable to such Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party~~'s breach of~~ ’s Non-Indemnifiable Claim. The Company shall not settle any action without the prior written consent of the ~~representations~~relevant Purchaser Party, ~~warranties~~which consent shall not be unreasonably withheld, ~~covenants~~ delayed or ~~agreements made by the Purchasers in this Agreement or in the other Transaction Documents~~conditioned, unless such settlement includes an unconditional release of such Purchaser Party from all liability and does not otherwise impose any obligations on such Purchaser Party.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Panamerican Bancorp), Securities Purchase Agreement (Prides Capital Partners, LLC)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.8, the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation (collectively, “Losses”) that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any breach in any material respect of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. But in no event shall the Company be obligated to bear fees and disbursements of more than one law firm per Purchaser Party under the provisions of Section 4.9 or otherwise. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the ~~Purchasers~~ applicable Purchaser in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Spatialight Inc), Securities Purchase Agreement (Spatialight Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.13, the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent~~, which shall not be unreasonably withheld or delayed~~; or (ii) to the ~~extent, but only to the~~ extent that a any loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by ~~the Purchasers~~ each Purchaser in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (U S Restaurant Properties Inc), Securities Purchase Agreement (U S Restaurant Properties Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including without limitation all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against (i) a Purchaser, or any of them or their respective ~~Affiliates~~Affiliates or (ii) a Purchaser Party, by any ~~stockholder~~ shareholder of the Company who is not an Affiliate of such ~~Purchaser~~Purchaser or Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, ~~warranties~~ warranties, covenants or ~~covenants~~ agreements under the Transaction Documents or any agreements or understandings such Purchaser or a Purchaser Party may have with any such ~~stockholder~~ shareholder or any violations by the Purchaser or a Purchaser Party of state or federal securities laws or any conduct by such Purchaser or a Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Zone 4 Play Inc), Securities Purchase Agreement (Zone 4 Play Inc)

Appears in 2 contracts

Samples: Securities Subscription Agreement (Gentium S.p.A.), Securities Subscription Agreement (Gentium S.p.A.)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Wave Systems Corp), Securities Purchase Agreement (Wave Systems Corp)

Appears in 2 contracts

Samples: Securities Purchase Agreement (Access Integrated Technologies, Inc. D/B/a Cinedigm Digital Cinema Corp.), Securities Purchase Agreement (Access Integrated Technologies, Inc. D/B/a Cinedigm Digital Cinema Corp.)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~6(e), the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its respective directors, officers, shareholders, partners, members~~, partners~~, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (ai) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or ~~in the other Transaction Documents or~~ (bii) any action instituted against ~~a Purchaser~~any Purchasers, ~~or any of them~~ Purchaser Party or their respective Affiliates, by any stockholder of the Company or other person who is not an Affiliate of any such Purchaser, with respect to any of the transactions contemplated by ~~the Transaction Documents~~ this Agreement (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under ~~the Transaction Documents~~ this Agreement or any agreements or understandings such Purchaser may have with any such stockholder or any violations by ~~the~~ such Purchaser of state or federal securities ~~laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance~~laws). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (iA) the employment thereof has been specifically authorized by the Company in writing, ; (iiB) the Company has failed after a reasonable period of time to assume such defense and to employ counsel reasonably acceptable to such Purchaser Party or (~~iii~~C) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (iI) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed; or (iiII) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by ~~the Purchasers~~ such Purchaser in this ~~Agreement or in the other Transaction Documents~~Agreement.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Osteologix, Inc.), Securities Purchase Agreement (Osteologix, Inc.)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Access Integrated Technologies Inc), Securities Purchase Agreement (Access Integrated Technologies Inc)

Appears in 2 contracts

Samples: Securities Purchase Agreement (RCG Companies Inc), Securities Purchase Agreement (RCG Companies Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.6, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation ~~that~~ reasonably incurred in connection with defending or investigating any suit or action in respect thereof to which any such Purchaser Party may ~~suffer~~ become a party under the Securities Act, the Exchange Act or ~~incur~~ other federal or state statutory law or regulation, at common law or otherwise, insofar as ~~a result~~ such losses, liabilities, obligations, claims, contingencies, damages, costs and expenses arise out of or ~~relating to~~ are based on (a) any ~~breach~~ untrue statement or alleged untrue statement of ~~any of the representations, warranties, covenants or agreements made by the Company in this Agreement or~~ a material fact contained in the ~~other Transaction Documents~~ Registration Statement or the Prospectus Supplement, or (b) ~~any action instituted against~~ the omission or alleged omission to state therein a ~~Purchaser~~material fact required to be stated therein or necessary to make the statements therein not misleading, ~~or any of them or their respective Affiliates, by any stockholder of~~ provided that the Company ~~who is~~ will not ~~an Affiliate~~ be liable in any such case to the extent that any such liability, obligation, claim, contingency, damage, cost or expense arises out of ~~such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action~~ or is based upon ~~a breach~~ any 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 ~~such Purchaser's representations, warranties or covenants under~~ the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Purchasers for inclusion therein. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the ~~extent~~ extent, that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Novavax Inc), Securities Purchase Agreement (Novavax Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action ~~shall~~ will be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party ~~shall~~ will promptly notify the Company in writing, and the Company ~~shall~~ will have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party ~~shall~~ will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel ~~shall~~ will be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which ~~shall~~ will not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Bullion River Gold Corp), Securities Purchase Agreement (Bullion River Gold Corp)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold each of the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all third party losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any ~~such~~ Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings ~~such~~ the Purchaser may have with any such stockholder or any violations by ~~the~~ such Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, ~~such~~ the Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of ~~such~~ the Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of ~~such~~ the Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction ~~Documents~~Documents or any violations by the Purchaser of state or federal securities laws or any conduct by the Purchasers which constitutes fraud, gross negligence, willful misconduct or malfeasance.

Appears in 1 contract

Samples: Securities Purchase Agreement (Passport Restaurants, Inc.)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.10, the Company will indemnify and hold the Purchasers and their respective directors, officers, managers, shareholders~~, members~~, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a any Purchaser, or any of ~~them or their respective~~ its Affiliates, by any stockholder of the Company who is not an Affiliate of ~~such~~ Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of ~~such~~ Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings ~~such~~ a Purchaser may have with any such stockholder or any violations by ~~the~~ a Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by ~~the Purchasers~~ such Purchaser in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Uni-Pixel)

Indemnification of Purchasers. ~~Subject~~ (a) In consideration of each Purchaser’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition to all of the ~~provisions of this Section 4.11~~Company’s other obligations under the Transaction Documents, the Company ~~will~~ shall defend, protect, indemnify and hold ~~the Purchasers~~ harmless each Purchaser and each holder of any Securities and all of their ~~directors~~shareholders, partners, members, officers, ~~shareholders, members, partners~~directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (~~each~~including, ~~a "Purchaser Party"~~without limitation, those retained in connection with the transactions contemplated by this Agreement) ~~harmless~~ (each an “Indemnitee” and collectively, the “Indemnitees”) from and against any and all ~~losses~~actions, ~~liabilities~~causes of action, ~~obligations~~suits, claims, ~~contingencies~~losses, costs, penalties, fees, liabilities and damages, ~~costs~~ and ~~expenses~~expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including ~~all judgments, amounts paid in settlements, court costs and~~ reasonable attorneys' ’ fees and ~~costs of investigation that~~ disbursements (the “Indemnified Liabilities”), incurred by any ~~such Purchaser Party may suffer or incur~~ Indemnitee as a result of of, or arising out of, or relating to (ai) any misrepresentation or breach of any representation or warranty made by the Company or any Subsidiary, as applicable, in any of the Transaction Documents, (ii) any breach of any covenant, agreement or obligation of the ~~representations, warranties, covenants~~ Company or ~~agreements made by~~ any Subsidiary contained in any of the ~~Company in this Agreement or in the other~~ Transaction Documents or (biii) any cause of action, suit, proceeding or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action ~~instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder~~ brought on behalf of the Company ~~who is not an Affiliate~~ or any Subsidiary) or which otherwise involves such Indemnitee that arises out of or results from (A) the execution, delivery, performance or enforcement of any of the Transaction Documents, (B) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities, (C) any disclosure properly made by such Purchaser pursuant to Section 5.10, or (D) the status of such ~~Purchaser, with respect~~ Purchaser or holder of the Securities either as an investor in the Company pursuant to ~~any of~~ the transactions contemplated by the Transaction Documents or as a party to this Agreement (~~unless such~~ including, without limitation, as a party in interest or otherwise in any action ~~is based upon a breach of such Purchaser's representations, warranties~~ or ~~covenants under~~ proceeding for injunctive or other equitable relief). To the ~~Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations~~ extent that the foregoing undertaking by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity Company may be ~~sought pursuant to this Agreement~~unenforceable for any reason, ~~such Purchaser Party shall promptly notify the Company in writing, and~~ the Company shall ~~have~~ make the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except maximum contribution to the ~~extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period~~ payment and satisfaction of ~~time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position~~ each of the ~~Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party~~ Indemnified Liabilities which is permissible under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documentsapplicable law.

Appears in 1 contract

Samples: Securities Purchase Agreement (Trio Petroleum Corp.)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~6(g), the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (ai) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (bii) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities ~~laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance~~laws). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (iA) the employment thereof has been specifically authorized by the Company in writing, ; (iiB) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (~~iii~~C) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (iI) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed; or (iiII) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Subscription Agreement (WaferGen Bio-Systems, Inc.)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.8, the Company and the Holding Company, severally and jointly, will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company or the Holding Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company or the Holding Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company or Holding Company in writing, and the Company or Holding Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company or the Holding Company in writing, (ii) the Company or Holding Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company or the Holding Company and the position of such Purchaser Party, provided, however, that the Holding Company and Company shall not be liable pursuant to this sentence for the reasonable fees and expenses of more than one set of counsel and, if applicable, one set of local counsel, in any single action or group of related actions arising out of substantially the same set of operative facts. The Company and the Holding Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's or the Holding Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Common Horizons Inc)

Indemnification of Purchasers. ~~Subject~~ In addition to the ~~provisions of this Section 4.11~~indemnity provided in the Registration Rights Agreement, the Company will indemnify and hold the Purchasers and their affiliates, directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation (collectively, “Losses”) that any such Purchaser Party may suffer or incur as a result of or relating to to: (a) any misrepresentation, breach or inaccuracy of any ~~of the representations~~representation, ~~warranties~~warranty, ~~covenants~~ covenant or ~~agreements~~ agreement made by the Company in ~~this Agreement or in the other~~ any Transaction ~~Documents~~ Document; or (b) any ~~action instituted~~ cause of action, suit, or claim brought or made against ~~a Purchaser~~such Purchaser Party and arising out of or resulting from the execution, delivery, performance or enforcement of this Agreement or any of ~~them~~ the other Transaction Documents and without causation by other activity, obligation, condition or ~~their respective Affiliates, by any stockholder of the Company who is not an Affiliate of~~ liability pertaining to such Purchaser; provided, ~~with respect to any of~~ however, the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable ~~to any Purchaser Party under this Agreement~~ for (i) ~~for~~ special damages or (ii) Losses that arise out of a Purchaser’s violation of law, or misrepresentation, breach or inaccuracy of any representation, warranty, covenant or agreement made by Purchaser in any Transaction Document; and provided further, the indemnity agreement contained herein shall not apply to amounts paid in settlement ~~by a Purchaser Party~~ of any such Loss if such settlement is effected without the ~~Company's prior written consent,~~ consent of the Company (which consent shall not be unreasonably ~~withheld or delayed; or (ii)~~ withheld). In addition to the ~~extent~~indemnity contained herein, ~~but only to~~ the ~~extent that a loss, claim, damage or liability is attributable to any~~ Company will reimburse each Purchaser ~~Party's breach~~ Party for its reasonable legal and other expenses (including the cost of any ~~of the representations~~investigation, ~~warranties~~preparation and travel in connection therewith) incurred in connection therewith, ~~covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents~~as such expenses are incurred.

Appears in 1 contract

Samples: Warrant Purchase Agreement (Elixir Gaming Technologies, Inc.)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of ~~its~~ it s own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) that the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the ~~Company~~ company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Mexoro Minerals LTD)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, each party (the ~~Company~~ "INDEMNIFYING Party") will indemnify and hold the ~~Purchasers~~ other parties and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a an "~~Purchaser Party~~INDEMNIFIED PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such ~~Purchaser~~ Indemnified Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the ~~Company~~ Indemnifying Party in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any ~~Purchaser~~ Indemnified Party in respect of which indemnity may be sought pursuant to this Agreement, such ~~Purchaser~~ Indemnified Party shall promptly notify the ~~Company~~ Indemnifying Party in writing, and the ~~Company~~ Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing. Any ~~Purchaser~~ Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such ~~Purchaser~~ Indemnified Party except to the extent that (i) the employment thereof has been specifically authorized by the ~~Company~~ Indemnifying Party in writing, (ii) the ~~Company~~ Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the ~~Company~~ Indemnifying Party and the position of such ~~Purchaser~~ Indemnified Party. The ~~Company~~ Indemnifying Party will not be liable to any ~~Purchaser~~ Indemnified Party under this Agreement (i) for any settlement by ~~a Purchaser~~ an Indemnified Party effected without the ~~Company~~Indemnifying Party's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any ~~Purchaser~~ Indemnified Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. In no event shall the liability of any Purchaser hereunder be greater in amount than the dollar amount of the net proceeds received by such Purchaser upon the sale of the Securities.

Appears in 1 contract

Samples: Securities Purchase Agreement (Galaxy Energy Corp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9, the Company will indemnify and hold the ~~Purchasers~~ Purchaser and ~~their~~ its directors, officers, ~~shareholders~~stockholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement, the Registration Rights Agreement ~~or in~~ and the ~~other Transaction Documents~~ Certificate or (b) any action instituted against a the Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings ~~such~~ the Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by ~~such~~ the Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the ~~Purchasers~~ Purchaser in this Agreement or in the ~~other Transaction Documents~~Registration Rights Agreement. The Company shall not approve the settlement of any claims against a Purchaser Party without the written consent of the Purchaser Party, unless such settlement holds such Purchaser Party harmless and releases the Purchaser Party from all claims.

Appears in 1 contract

Samples: Securities Purchase Agreement (Cambridge Heart Inc)

Indemnification of Purchasers. ~~Subject~~ Unless such action is based upon a breach of such Purchaser’s representation, warranties or covenants under the Transaction Documents or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance (collectively, “Non-Indemnifiable Claims”) and subject to the provisions of this Section ~~4.11~~4.5, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (~~each,~~ each a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the ~~Purchaser~~ Company of state or federal securities ~~laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)~~laws. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing, which counsel shall be reasonably acceptable to such Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material 17 issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party~~'s breach of~~ ’s Non-Indemnifiable Claim. The Company shall not settle any action without the prior written consent of the ~~representations~~relevant Purchaser Party, ~~warranties~~which consent shall not be unreasonably withheld, ~~covenants~~ delayed or ~~agreements made by the Purchasers in this Agreement or in the other Transaction Documents~~conditioned, unless such settlement includes an unconditional release of such Purchaser Party from all liability and does not otherwise impose any obligations on such Purchaser Party.

Appears in 1 contract

Samples: Securities Purchase Agreement (Panamerican Bancorp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction ~~Documents~~Documents or (iii) any loss, claim, damage or liability resulting from or relating to any agreements or understandings such Purchaser may have with any shareholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance.

Appears in 1 contract

Samples: Securities Purchase Agreement (Neorx Corp)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their respective directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Cambridge Heart Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.5, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable ~~attorneys'~~ lawyer’s fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any ~~stockholder~~ shareholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, ~~gross~~ wilful negligence, ~~willful~~ wilful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the ~~defense~~ defence thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the ~~defense~~ defence thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Peace Arch Entertainment Group Inc)

Indemnification of Purchasers. ~~Subject to the provisions of this Section 4.11, the~~ The Company will indemnify and hold the Purchasers and their directors, trustees, officers, shareholders~~, members~~, partners, employees and agents (each, a "~~Purchaser Party~~PURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur ("LOSSES") as a result of or relating to to: (a) any misrepresentation, breach or inaccuracy, or any allegation by a third party that, if true, would constitute a breach or inaccuracy, of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction ~~Documents~~ Documents; or (b) any ~~action instituted~~ cause of action, suit or claim brought or made against ~~a Purchaser~~such Purchaser Party and arising solely out of or solely resulting from the execution, delivery, performance or enforcement of this Agreement or any of ~~them or their respective Affiliates,~~ the other Transaction Documents and without causation by any ~~stockholder of the Company who is not an Affiliate of~~ other activity, obligation, condition or liability pertaining to such Purchaser~~, with respect~~ . The Company shall not be liable for any indemnity pursuant to ~~any~~ this Section 4.8 until the aggregate of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations all Losses incurred by the Purchaser Parties as a result of ~~state~~ any such misrepresentation, breach, inaccuracy, cause of action, suit or ~~federal securities laws or any conduct by~~ claim exceeds $50,000, and then the Company only shall be liable for such Losses in excess of $50,000. The Company will reimburse such Purchaser ~~which constitutes fraud~~for its reasonable legal and other expenses (including the cost of any investigation, ~~gross negligence~~preparation and travel in connection therewith) incurred in connection therewith, ~~willful misconduct or malfeasance)~~as such expenses are incurred upon presentation of reasonably evidence thereof. ~~If any action~~ The Purchaser Parties shall ~~be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly~~ notify the Company in ~~writing, and the~~ writing promptly upon becoming aware of any fact or circumstance which might give rise to indemnification pursuant to this Section 4.8. The Company shall ~~have the right~~ be entitled to ~~assume~~ control the defense ~~thereof~~ of any action for which any Purchaser Party claims or may claim indemnification pursuant to this Section 4.8, with counsel of ~~its~~ the Company's own choosing. ~~Any~~ No Purchaser Party shall ~~have~~ settle or compromise any action for which it has claimed indemnification pursuant to this Section 4.8 without the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position prior written consent of the ~~Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the~~ Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Ultimate Software Group Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.7, the Company will indemnify and hold the ~~Purchasers and their~~ Purchasers, directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a ~~Purchaser,~~ Purchaser or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Eagle Broadband Inc)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such claimant stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Vistula Communications Services Inc)

Indemnification of Purchasers. (a) Subject to the provisions of this Section ~~4.11~~4.8, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws (or any comparable jurisdictional laws for the British Virgin Islands) or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Lj International Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.12, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Escrow Agreement (Smartire Systems Inc)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "~~Purchaser Party~~PURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Diomed Holdings Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, members~~, partners~~, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur (the “Indemnified Liabilities”) as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any cause of action, suit or claim brought or made against such Purchaser Party by a third party (including for these purposes a derivative action ~~instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder~~ brought on behalf of the ~~Company who is not an Affiliate~~ Company) and arising out of ~~such Purchaser~~or resulting from (i) the execution, ~~with respect to any~~ delivery, performance or enforcement of ~~the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under~~ the Transaction Documents or any ~~agreements~~ other certificate, instrument or ~~understandings~~ document contemplated hereby or thereby, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Shares, or (iii) the status of such Purchaser ~~may have with any such stockholder~~ or ~~any violations~~ holder of the Shares as an investor in the Company. To the extent that the foregoing undertaking by the ~~Purchaser~~ Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of ~~state or federal securities laws or any conduct by such Purchaser~~ each of the Indemnified Liabilities which ~~constitutes fraud, gross negligence, willful misconduct or malfeasance).~~ is permissible under applicable law If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this ~~Agreement (i)~~ Section 4.5 for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Genta Inc De/)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a ~~Purchaser, or any of them or their respective Affiliates,~~ Purchaser Party by any stockholder of the Company who is not an Affiliate of such ~~Purchaser~~Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by the Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Cubic Energy Inc)

Indemnification of Purchasers. Subject to the provisions of this ~~Section 4.11~~Article 6A, the Company will indemnify and hold the ~~Purchasers~~ Subscriber and ~~their~~ its directors, officers, shareholders~~, members~~, partners, employees and agents (each, a ~~"Purchaser~~ “Subscriber Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such ~~Purchaser~~ Subscriber Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or ~~in the other Transaction Documents or~~ (b) any action instituted against ~~a Purchaser~~Subscriber, or any of ~~them or their respective~~ its Affiliates, by any stockholder of the Company who is not an Affiliate of such ~~Purchaser~~Subscriber, with respect to any of the transactions contemplated by ~~the Transaction Documents~~ this Agreement (unless such action is based upon a breach of ~~such Purchaser's representations~~Subscriber’s representation, warranties or covenants under ~~the Transaction Documents~~ this Agreement or any agreements or understandings ~~such Purchaser~~ that Subscriber may have with any such stockholder or any violations by ~~the Purchaser~~ Subscriber of state or federal securities ~~laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance~~laws). If any action shall be brought against any ~~Purchaser~~ Subscriber Party in respect of which indemnity may be sought pursuant to this Agreement, such ~~Purchaser~~ Subscriber Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any ~~Purchaser~~ Subscriber Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such ~~Purchaser~~ Subscriber Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such ~~Purchaser~~ Subscriber Party. The Company will not be liable to any ~~Purchaser~~ Subscriber Party under this Agreement (i) for any settlement by a ~~Purchaser~~ Subscriber Party effected without the Company's ’s prior written consent, which shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any ~~Purchaser~~ Subscriber Party's ’s breach of any of the representations, warranties, covenants or agreements made by the ~~Purchasers~~ Subscriber in this ~~Agreement or in the other Transaction Documents~~Agreement.

Appears in 1 contract

Samples: Subscription Agreement (Hana Biosciences Inc)

Indemnification of Purchasers. Subject to the provisions of this ~~Section 4.11~~SECTION 4.7, the Company will indemnify and hold the Purchasers and their ~~directors,~~ directors and officers, ~~shareholders, members, partners, employees and agents~~ (each, a "~~Purchaser Party~~PURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including without limitation all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against (i) a Purchaser, or any of them or their respective ~~Affiliates~~Affiliates or (ii) a Purchaser Party, by any ~~stockholder~~ shareholder of the Company who is not an Affiliate of such ~~Purchaser~~Purchaser or Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, ~~warranties~~ warranties, covenants or ~~covenants~~ agreements under the Transaction Documents or any agreements or understandings such Purchaser or a Purchaser Party may have with any such ~~stockholder~~ shareholder or any violations by the Purchaser or a Purchaser Party of state or federal securities laws or any conduct by such Purchaser or a Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction ~~Documents~~Documents or any agreements or understandings such Purchaser or a Purchaser Party may have with any such shareholder or any violations by the Purchaser or a Purchaser Party of state or federal securities laws or any conduct by such Purchaser or a Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance). From and after the Closing, the rights of the Purchasers under this Section shall be the exclusive monetary remedy thereof with respect to any breach of the Transaction Documents and any indemnifiable claim.

Appears in 1 contract

Samples: Securities Purchase Agreement (Zone 4 Play Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.4, the Company will indemnify and hold the Purchasers and their directors, officers, ~~shareholders~~stockholders, members, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Shumate Industries Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.6, the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, officers, shareholders, members, partners, employees and ~~agents~~ agents, each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees of such controlling persons (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, ~~damages~~damages (excluding consequential, special, indirect or punitive damages or diminution in value or lost profits), costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation (“Damages”) that any such Purchaser Party may suffer or incur as a result of or ~~relating to (a)~~ arising from any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own ~~choosing~~choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of outside counsel to such ~~separate counsel~~Purchaser Party, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (iy) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (iiz) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by ~~the Purchasers~~ such Purchaser Party in this Agreement or in the other Transaction Documents. Notwithstanding anything to the contrary contained in this Agreement, the maximum amount of indemnifiable Damages which may be recovered from the Company by a Purchaser pursuant to this Section 4.6 shall be the 150% of such Purchaser’s Subscription Amount.

Appears in 1 contract

Samples: Securities Purchase Agreement (XINHUA SPORTS & ENTERTAINMENT LTD)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.4, the Company will defend, indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, officers, shareholders, members, partners, employees and ~~agents~~ agents, each Person who controls such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees of such controlling persons (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, penalties, costs and ~~expenses~~expenses of any kind or nature whatsoever, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur (collectively “Losses”) as a result of ~~or relating to (a)~~ any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Agreement. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in ~~writing~~writing (provided that the failure of any Purchaser Party to give such notice shall not relieve the Company of its obligations or liabilities pursuant to this Agreement, except to the extent that such failure shall have prejudiced the Company, and then only to the extent of such prejudice), and the Company shall have the right to assume the defense thereof with counsel of its ~~own choosing~~choosing (which counsel shall be reasonably acceptable to the relevant Purchaser Party). Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; , or (ii) to the ~~extent, but only to the~~ extent that ~~a loss, claim, damage or liability is attributable to~~ any Losses are proximately caused by any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by ~~the Purchasers~~ such Purchaser Party in this ~~Agreement or~~ Agreement. The Company shall obtain the prior written consent of the relevant Purchaser Party(ies) before entering into any settlement of any third party claim (which may be withheld in the relevant Purchaser Party’s absolute and sole discretion) if the settlement does not release the relevant Purchaser Party(ies) from all liabilities and obligations with respect to such claim or the settlement imposes injunctive or other ~~Transaction Documents~~equitable relief against the relevant Purchaser Party(ies).

Appears in 1 contract

Samples: Investment Agreement (NewStar Financial, Inc.)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~6(f), the Company will indemnify and hold ~~the Purchasers~~ Purchaser and ~~their~~ its directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (ai) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or ~~in the other Transaction Documents or~~ (bii) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by ~~the Transaction Documents~~ this Agreement (unless such action is based upon a breach of ~~such~~ the Purchaser~~'s representations~~’s representation, warranties or covenants under ~~the Transaction Documents~~ this Agreement or any agreements or understandings ~~such~~ the Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities ~~laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance~~laws). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (iA) the employment thereof has been specifically authorized by the Company in writing, ; (iiB) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (~~iii~~C) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (iI) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed; or (iiII) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the ~~Purchasers~~ Purchaser in this ~~Agreement or in the other Transaction Documents~~Agreement.

Appears in 1 contract

Samples: Securities Purchase Agreement (Forex365, Inc.)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~6(e), the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (ai) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or ~~in the other Transaction Documents or~~ (bii) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by ~~the Transaction Documents~~ this Agreement (unless such action is based upon a breach of ~~such~~ the Purchaser~~'s representations~~’s representation, warranties or covenants under ~~the Transaction Documents~~ this Agreement or any agreements or understandings ~~such~~ the Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities ~~laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance~~laws). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (iA) the employment thereof has been specifically authorized by the Company in writing, ; (iiB) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (~~iii~~C) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (iI) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed; or (iiII) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the ~~Purchasers~~ Purchaser in this ~~Agreement or in the other Transaction Documents.~~Agreement..

Appears in 1 contract

Samples: Form of Securities Purchase Agreement (Man Shing Agricultural Holdings, Inc)

Appears in 1 contract

Samples: Securities Purchase Agreement (Whos Your Daddy Inc)

Indemnification of Purchasers. ~~Subject~~ Unless such action is based upon a breach of such Purchaser's representation, warranties or covenants under the Transaction Documents or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance (collectively, "Non-Indemnifiable Claims") and subject to the provisions of this Section ~~4.11~~4.5, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (~~each,~~ each a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the ~~Purchaser~~ Company of state or federal securities ~~laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)~~laws. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing, which counsel shall be reasonably acceptable to such Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ~~breach of~~ Non-Indemnifiable Claim. The Company shall not settle any action without the prior written consent of the ~~representations~~relevant Purchaser Party, ~~warranties~~which consent shall not be unreasonably withheld, ~~covenants~~ delayed or ~~agreements made by the Purchasers in this Agreement or in the other Transaction Documents~~conditioned, unless such settlement includes an unconditional release of such Purchaser Party from all liability and does not otherwise impose any obligations on such Purchaser Party.

Appears in 1 contract

Samples: Securities Purchase Agreement (Whitney Information Network Inc)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a ~~Purchaser~~Purchaser Party, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such ~~Purchaser~~Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Isonics Corp)

Indemnification of Purchasers. ~~Subject to the provisions of this Section 4.11, the Company~~ The Seller will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (ai) any breach of any of the representations, warranties, covenants or agreements made by the ~~Company~~ Seller in this ~~Agreement or in~~ Agreement, (ii) the ~~other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder~~ failure of the Company ~~who is not an Affiliate~~ to receive by July 31, 2007 executed amendments to the debt instruments with the banks listed in Schedule 4(c) hereto stating that no default or event of ~~such Purchaser, with respect to any of~~ default would result from the transactions contemplated by the ~~Transaction Documents~~ Agreement or (~~unless such action is based upon a breach~~ iii) any damages relating to or caused by any default or event of default with regard to the subject matter of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasanceSchedule 4(c). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the ~~Company~~ Seller in writing, and the ~~Company~~ Seller shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (iA) the employment thereof has been specifically authorized by ~~the Company~~ Seller in writing, (iiB) ~~the Company~~ Seller has ~~failed~~ failed, after a reasonable period of ~~time~~ time, to assume such defense and to employ ~~counsel~~ counsel, or (~~iii~~C) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of Seller, on the ~~Company~~ one hand, and the position of such Purchaser Party, on the other. The ~~Company~~ Seller will not be liable to any Purchaser Party under this Agreement (iI) for any settlement by a Purchaser Party effected without the ~~Company's~~ Seller’s prior written consent, which shall not be unreasonably ~~withheld~~ withheld, conditioned or delayed; or (iiII) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the ~~Purchasers~~ Purchaser in this ~~Agreement or in the other Transaction Documents~~Agreement.

Appears in 1 contract

Samples: International Securities Purchase Agreement (Formula Systems (1985) LTD)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "~~Purchaser Party~~PURCHASER PARTY") harmless from any and all ~~losses,~~ liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation (excluding any lost profits, incidental or consequential damages) that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. A Purchaser Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party unless: (1) the Company has agreed in writing to pay such fees and expenses; (2) the Company shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Purchaser Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Purchaser Party and the Company, and such Purchaser Party shall reasonably believe, based on the written advice, reasonably acceptable to the Company, of its counsel that a material conflict of interest is likely to exist if the same counsel were to represent such Purchaser Party and the Company (in which case, if such Purchaser Party notifies the Company in writing that it elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense thereof and the reasonable fees and expenses of one separate counsel for all Indemnified Parties shall be at the expense of the Company).

Appears in 1 contract

Samples: Securities Purchase Agreement (Perma Fix Environmental Services Inc)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, members, partners, employees and agents (each, a "~~Purchaser Party~~PURCHASER PARTY") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents. Notwithstanding anything herein to the contrary, without limiting any Purchaser's other remedies at law or equity, such Purchaser's right to receive indemnification hereunder shall be limited to it Subscription Amount paid at the Closing.

Appears in 1 contract

Samples: Securities Purchase Agreement (Able Energy Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all out-of-pocket losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not a Purchaser or an Affiliate of ~~such~~ a Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.. 4.10

Appears in 1 contract

Samples: Securities Purchase Agreement (Meritage Private Equity Fund Lp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or ~~in the other Transaction Documents or~~ (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by ~~the Transaction Documents~~ this Agreement (unless such action is based upon a breach of such Purchaser's ’s representations, warranties or covenants under ~~the Transaction Documents~~ this Agreement or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this ~~Agreement or in the other Transaction Documents~~Agreement.

Appears in 1 contract

Samples: Securities Purchase Agreement (Wave Systems Corp)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.9, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any material breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not a Purchaser or an Affiliate of ~~such~~ any Purchaser, ~~with respect to any~~ arising solely out of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable written opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (RCG Companies Inc)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.7, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's ~~representations~~representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Wave Systems Corp)

Indemnification of Purchasers. Subject to the provisions of this Section 4.11, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, ~~members,~~ partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the 16 transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser~~'s representations~~’s representation, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Crestview Capital Master LLC)

Indemnification of Purchasers. ~~Subject~~ In addition to the ~~provisions of this Section 4.11~~indemnity provided in the Registration Rights Agreement, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders, partners, members, ~~partners~~managers, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation (collectively, “Losses”) that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any misrepresentation, breach or inaccuracy of any ~~of the representations~~representation, ~~warranties~~warranty, ~~covenants~~ covenant or ~~agreements~~ agreement made by the Company in ~~this Agreement or in the other~~ any Transaction ~~Documents or (b) any action instituted against a Purchaser~~Document; provided, ~~or any of them or their respective Affiliates~~however, ~~by any stockholder of~~ that the Company ~~who~~ shall not be obligated to indemnify and hold any Purchaser Party harmless for any Losses to the extent indemnity for such losses is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct obtained by such Purchaser ~~which constitutes fraud~~Party under Section 5(a) of the Registration Rights Agreement (including, ~~gross negligence~~without limitation, ~~willful misconduct or malfeasance). If~~ any ~~action shall be brought against any Purchaser Party in respect of~~ Losses for which indemnity may be sought by such Purchaser Party under such Section but in unavailable pursuant to the terms thereof. In addition to the indemnity contained herein, the Company will reimburse each Purchaser Party for its reasonable legal and other expenses (including the cost of any investigation, preparation and travel in connection therewith) incurred in connection therewith, as such expenses are incurred. If and to the extent that such indemnification is unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of such losses permissible under applicable law. Notwithstanding anything in this Section 4.6(a) to the contrary, if a Purchaser Party is entitled to indemnification under the Registration Rights Agreement with respect to a given set of facts or circumstances relating to any "Registration Statement", any "Prospectus" or any form of prospectus or in any amendment or supplement thereto or any preliminary prospectus (as those terms are defined therein), filed pursuant to such Registration Rights Agreement, and such indemnification is not available due to an express limitation set forth in Section 5(a) of the Registration Rights Agreement, then such Purchaser Party shall ~~promptly notify the Company in writing, and the Company shall have the right~~ not be entitled to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except indemnification under this Section 4.6(a) to the extent that ~~(i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume~~ Losses arise from such ~~defense~~ facts and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documentscircumstances.

Appears in 1 contract

Samples: Securities Purchase Agreement (Edap TMS Sa)

Indemnification of Purchasers. Subject to the provisions of this Section ~~4.11~~4.7, the Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their directors, officers, shareholders, members, partners, employees~~ its investment advisers and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action or claim instituted or made against ~~a Purchaser, or~~ the Purchaser Parties in any ~~of them or their respective Affiliates~~capacity, by any stockholder of the Company who is not an ~~Affiliate~~ affiliate of such ~~Purchaser~~Purchaser Party or any other third party (including a derivative action brought on behalf of the Company) (a “Covered Action”), with respect to to, or arising out of or resulting from, any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any ~~action~~ Covered Action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own ~~choosing~~choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such ~~action~~ Covered Action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such ~~action~~ Covered Action there is, in the reasonable opinion of ~~such separate~~ counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (iy) for any settlement by a Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or delayed; or (iiz) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's ’s willful misconduct, gross negligence or breach of any of the representations, warranties, covenants or agreements made by ~~the Purchasers~~ such Purchaser Party in this Agreement or in the other Transaction Documents. The Company shall not, without the prior written consent of the Purchaser Party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Purchaser Party of a release from all liability in respect to such Covered Action, and such settlement shall not include any admission as to fault on the part of the Purchaser Party. The indemnification required by this Section 4.7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.

Appears in 1 contract

Samples: Securities Purchase Agreement (Seres Therapeutics, Inc.)

Appears in 1 contract

Samples: Securities Subscription Agreement (Gentium S.p.A.)

Appears in 1 contract

Samples: Securities Purchase Agreement (Verticalnet Inc)

Indemnification of Purchasers. ~~Subject to the provisions of this Section 4.11, the~~ The Company will indemnify and hold ~~the Purchasers~~ each Purchaser and ~~their~~ its directors, managers, officers, shareholders, members, partners, employees and agents (each, a "“Purchaser Party"”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' ’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach by such Purchaser of ~~such Purchaser's~~ its representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by ~~the~~ such Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own ~~choosing~~choosing and to control any settlement of the claim; provided, however, that the Company will not settle any claim unless it first obtains the consent of the relevant Purchaser Parties, which consent shall not be unreasonably withheld if such settlement (i) does not require the Purchaser Parties to make any payment that is not indemnified under this Agreement, (ii) does not impose any non-financial obligations on the Purchaser Parties and (iii) does not require an acknowledgment of wrongdoing on the part of the Purchaser Parties. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's ’s prior written consent, which shall not be unreasonably withheld or ~~delayed~~delayed (it being agreed that it shall not be unreasonable for the Company to withhold or delay such consent if the Company (x) has acknowledged in writing its obligation to indemnify such Purchaser Party with respect to such matter, (y) the Company has assumed and is actively and in good faith pursuing the defense of such matter as herein provided, and (z) provided to such Purchaser Party reasonably acceptable evidence that the Company is able to comply with its indemnification obligations hereunder); or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to ~~any~~ such Purchaser Party's ’s wrongful actions or omissions, or gross negligence or to such Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by ~~the Purchasers~~ such Purchaser in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Note and Warrant Purchase Agreement (Global Realty Development Corp)

Indemnification of Purchasers. Subject to the provisions of ----------------------------- this Section ~~4.11~~4.14, the Company will indemnify and hold the Purchasers and their directors, officers, shareholders~~, members~~, partners, employees and agents (each, a "Purchaser Party") harmless from any and all losses, liabilities, --------------- obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys' fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to ~~(a)~~ any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser's representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance)Documents. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will not be liable to any Purchaser Party under this Agreement (i) for any settlement by a an Purchaser Party effected without the Company's prior written consent, which shall not be unreasonably withheld or delayed; or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party's breach of any of the representations, warranties, covenants or agreements made by the Purchasers in this Agreement or in the other Transaction Documents.

Appears in 1 contract

Samples: Securities Purchase Agreement (Applied Digital Solutions Inc)

Appears in 1 contract

Samples: Securities Purchase Agreement (Sento Corp)

Common use of Indemnification of Purchasers Clause in Contracts