Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 380 contracts
Samples: Underwriting Agreement (ENDRA Life Sciences Inc.), Underwriting Agreement (Key Mining Corp.), Underwriting Agreement (Scripps Safe, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter Indemnified Party (in addition to local counsel), Selected Dealer and/or Controlling Person ) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 222 contracts
Samples: Underwriting Agreement (Rectitude Holdings Ltd.), Underwriting Agreement (Rectitude Holdings Ltd.), Underwriting Agreement (Vocodia Holdings Corp)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) counsel to such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 111 contracts
Samples: Underwriting Agreement (Distoken Acquisition Corp), Underwriting Agreement (Distoken Acquisition Corp), Underwriting Agreement (Distoken Acquisition Corp)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 109 contracts
Samples: Underwriting Agreement (Oakmont Acquisition Corp.), Underwriting Agreement (New Asia Partners China I Corp), Underwriting Agreement (Capital Ten Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or action within reasonable time under the circumstances; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 108 contracts
Samples: Underwriting Agreement (ClimateRock), Underwriting Agreement (ClimateRock), Underwriting Agreement (Aurora Technology Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 64 contracts
Samples: Underwriting Agreement (Andina Acquisition Corp. II), Underwriting Agreement (Andina Acquisition Corp. II), Underwriting Agreement (Andina Acquisition Corp. II)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) the action includes both the Company and the indemnified party as defendants and such indemnified party or parties shall have reasonably concluded been advised by its counsel that there may be defenses available to it or them which are different from or additional to those available to the Company which makes it impossible or inadvisable for the Company and such indemnified party to be represented in the action by the same counsel (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or partiesparty), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by the Underwriter Indemnified Parties who are party to such Underwriter action (in addition to local counsel), Selected Dealer and/or Controlling Person ) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 62 contracts
Samples: Underwriting Agreement (Treasure Global Inc), Underwriting Agreement (Treasure Global Inc), Underwriting Agreement (Datasea Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or action within reasonable time under the circumstances; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company Company, or another conflict of interest or conflict as to legal representation exists (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 54 contracts
Samples: Underwriting Agreement (Alphatime Acquisition Corp), Underwriting Agreement (Alphatime Acquisition Corp), Underwriting Agreement (Redwoods Acquisition Corp.)
Procedure. If any Upon receipt by an Indemnified Person of actual notice of an action is brought against an Underwriter, a Selected Dealer or a Controlling such Indemnified Person in with respect of to which indemnity may reasonably be expected to be sought against the Company pursuant to Section 6.1under this Agreement, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnified Person shall promptly notify the Company in writing of the institution of such action and writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the Company may have on account of this Section 9 or otherwise to such Indemnified Person, except to the extent (and only to the extent) that its ability to assume the defense is actually impaired by such failure or delay. The Company shall, if requested by the Placement Agent, assume the defense of any such action, action (including the employment and fees of counsel (subject and reasonably satisfactory to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expensesPlacement Agent). Such Underwriter, such Selected Dealer or Controlling Any Indemnified Person shall have the right to employ its or their own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Indemnified Person unless unless: (i) the employment of such Company has failed promptly to assume the defense and employ counsel at for the expense benefit of the Company shall have been authorized in writing by Placement Agent and the Company in connection with the defense of such action, other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel, it being understood, however, that the Company shall not have employed counsel to have charge of be liable for the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter separate counsel (in addition to together with local counsel), Selected Dealer and/or Controlling Person shall be borne by representing the CompanyPlacement Agent and all Indemnified persons who are parties to such action. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the The Company shall have the right to approve the terms of not be liable for any settlement of such any action effected without its written consent (which approval shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Placement Agent, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each Indemnified Person, acceptable to such Indemnified Party, from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice therefor).
Appears in 46 contracts
Samples: Placement Agency Agreement (Ascent Solar Technologies, Inc.), Placement Agency Agreement (Ascent Solar Technologies, Inc.), Placement Agency Agreement (Ascent Solar Technologies, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded been advised by its counsel that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by the Underwriter Indemnified Parties who are party to such Underwriter action (in addition to local counsel), Selected Dealer and/or Controlling Person ) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 32 contracts
Samples: Underwriting Agreement (Veg House Holdings Inc.), Underwriting Agreement (LQR House Inc.), Underwriting Agreement (LQR House Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 28 contracts
Samples: Underwriting Agreement (UTXO Acquisition Inc.), Underwriting Agreement (UTXO Acquisition Inc.), Underwriting Agreement (Megalith Financial Acquisition Corp)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm (together with local counsel) of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. The advancement and reimbursement obligations of the Company required hereby regarding expenses shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every expense is incurred and is due and payable, and in such amounts as fully pay each and every expense as it is incurred (and in no event later than 10 days following the date of any invoice therefor).
Appears in 25 contracts
Samples: Warrant Agreement (Biotech Group Acquisition Corp), Warrant Agreement (Biotech Group Acquisition Corp), Underwriting Agreement (Prime Number Acquisition I Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel reasonably satisfactory to the Underwriter or Selected Dealer, as the case may be, to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to a local counsel)firm of attorneys in any applicable jurisdiction) selected by the Underwriter, Selected Dealer and/or Controlling Person controlling person as to any action shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. The Company shall not settle any action without the prior consent of the Representative, unless such settlement provides for a full release of the Underwriters and Selected Dealers (whether or not named a party to the action), without admission of any wrongdoing.
Appears in 21 contracts
Samples: Underwriting Agreement (Stoneleigh Partners Acquisition Corp.), Underwriting Agreement (Stoneleigh Partners Acquisition Corp.), Underwriting Agreement (Israel Growth Partners Acquisition Corp.)
Procedure. If any action is brought against an UnderwriterUnderwriter , a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) )} and payment of actual expenses. Such UnderwriterUnderwriter , such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such UnderwriterUnderwriter , such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 18 contracts
Samples: Underwriting Agreement (Aldabra Acquisition CORP), Underwriting Agreement (Terra Nova Acquisition CORP), Underwriting Agreement (Millstream II Acquisition CORP)
Procedure. If any Upon receipt by an Indemnified Person of actual notice of an action is brought against an Underwriter, a Selected Dealer or a Controlling such Indemnified Person in with respect of to which indemnity may reasonably be expected to be sought against the Company pursuant to Section 6.1under this Agreement, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnified Person shall promptly notify the Company in writing of the institution of such action and writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the Company may have on account of this Section 5 or otherwise to such Indemnified Person, except to the extent the Company is materially prejudiced as a proximate result of such failure. The Company shall have the right to assume the defense of any such action, action (including the employment and fees of counsel (subject designated by the Company and reasonably satisfactory to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expensesRepresentative). Such Underwriter, such Selected Dealer or Controlling Any Indemnified Person shall have the right to employ its or their own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Indemnified Person unless unless: (i) the employment of such Company has failed promptly to assume the defense and employ counsel at reasonably satisfactory to the expense Representative for the benefit of the Company shall have been authorized in writing by Underwriters and the Company in connection with the defense of such action, other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel. The Company shall not have employed counsel to have charge of be liable for the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter separate counsel (in addition to together with local counsel), Selected Dealer and/or Controlling Person representing all Indemnified Persons who are parties to such action), which counsel (together with any local counsel) for the Indemnified Persons shall be borne selected by the CompanyRepresentative. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the The Company shall have the right to approve the terms of not be liable for any settlement of such any action effected without its written consent (which approval shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Underwriters, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each Indemnified Person, from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice therefore).
Appears in 17 contracts
Samples: Underwriting Agreement (Scopus BioPharma Inc.), Underwriting Agreement (Scopus BioPharma Inc.), Underwriting Agreement (Electrameccanica Vehicles Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or action within reasonable time under the circumstances; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys (together with local counsel) selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. The advancement and reimbursement obligations of the Company required hereby regarding expenses shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every expense is incurred and is due and payable, and in such amounts as fully pay each and every expense as it is incurred (and in no event later than 10 days following the date of any invoice therefore).
Appears in 17 contracts
Samples: Underwriting Agreement (Mars Acquisition Corp.), Underwriting Agreement (Mars Acquisition Corp.), Underwriting Agreement (TenX Keane Acquisition)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. This Indemnification provided for in this Section 5.1 shall not be available to any party who shall fail to give notice as provided in this Section 5.1.2 if the Company was unaware of the proceeding to which such notice would have related and was actually prejudiced by the failure to give such notice; provided, however, that indemnification shall only be limited to the extent of such prejudice; provided, further, that, the omission so to notify the Company will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 5.1. The Company shall not without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceedings.
Appears in 17 contracts
Samples: Underwriting Agreement (Rand Acquisition Corp. II), Underwriting Agreement (Rand Acquisition Corp. II), Underwriting Agreement (Rand Acquisition Corp. II)
Procedure. If any action is brought against an Underwriter, a Selected Dealer the QIU or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer Underwriter or Controlling Person, as the case may be, QIU shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beQIU) and payment of actual expenses. Such Underwriter, such Selected Dealer the QIU or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, the QIU or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or action within reasonable time under the circumstances; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company Company, or another conflict of interest or conflict as to legal representation exists (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer the QIU and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer the QIU or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 17 contracts
Samples: Underwriting Agreement (Gardiner Healthcare Acquisitions Corp.), Underwriting Agreement (Gardiner Healthcare Acquisitions Corp.), Underwriting Agreement (Chardan Nextech Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 16 contracts
Samples: Underwriting Agreement (Trinity Partners Acquistion CO Inc.), Warrant Agreement (Cea Acquisition Corp), Underwriting Agreement (Trinity Partners Acquistion CO Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer the QIU or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.1Sections 5.1.1 and 5.1.2, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, party shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter Underwriter, QIU or such Selected Dealercontrolling person, as the case may beapplicable) and payment of actual expenses. Such Underwriter, such Selected Dealer QIU or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, QIU or such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) counsel to such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer QIU and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer QIU or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 15 contracts
Samples: Underwriting Agreement (Western Acquisition Ventures Corp.), Underwriting Agreement (Western Acquisition Ventures Corp.), Underwriting Agreement (Larkspur Health Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel reasonably acceptable to the Underwriter or Selected Dealer, as the case may be, to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to a local counsel)firm of attorneys in any applicable jurisdiction) selected by the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. This Indemnification provided for in this Section 5.1 shall not be available to any party who shall fail to give notice as provided in this Section 5.1.2 if the Company was unaware of the proceeding to which such notice would have related and was actually prejudiced by the failure to give such notice; provided, however, that indemnification shall only be limited to the extent of such prejudice; provided, further, that, the omission so to notify the Company will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 5.1. The Company shall not without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceedings.
Appears in 15 contracts
Samples: Underwriting Agreement (China Discovery Acquisition Corp.), Underwriting Agreement (China Discovery Acquisition Corp.), Underwriting Agreement (China Fortune Acquisition Corp.)
Procedure. If any action is brought against an the Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such the Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such the Underwriter or such Selected DealerDealer or Controlling Person, as the case may be) and payment of actual expenses. Such UnderwriterAny delay in notice will not relieve the Company of any liability to an indemnified party, such Selected Dealer or Controlling Person except to the extent that the Company demonstrates that the delay prejudiced the defense of the action. Any indemnified person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel which are incurred after the Company assumes the defense of the action shall be at the expense of such the Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed fails to assume the defense or to employ counsel to have charge of the defense of such action within a reasonable time after notice of the action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)) selected by the Underwriter, Selected Dealer and/or Controlling Person in their sole discretion shall be borne by the Company. Notwithstanding anything Company and paid as incurred or, at the option of the indemnified party, advanced pursuant to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheldSection 5.1.4.
Appears in 14 contracts
Samples: Underwriting Agreement (Second Sight Medical Products Inc), Underwriting Agreement (Resonant Inc), Underwriting Agreement (Energous Corp)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) the action includes both the Company and the indemnified party as defendants and such indemnified party or parties shall have reasonably concluded been advised by its counsel in writing that there may be defenses available to it or them which are different from or additional to those available to the Company which makes it impossible or inadvisable for the Company and such indemnified party to be represented in the action by the same counsel (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or partiesparty), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by the Underwriter Indemnified Parties who are party to such Underwriter action (in addition to local counsel), Selected Dealer and/or Controlling Person ) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 13 contracts
Samples: Underwriting Agreement (Janover Inc.), Underwriting Agreement (Janover Inc.), Underwriting Agreement (Janover Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded been advised by its counsel that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by the Underwriter Indemnified Parties who are party to such Underwriter action (in addition to local counsel), Selected Dealer and/or Controlling Person ) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld, conditioned or delayed.
Appears in 12 contracts
Samples: Underwriting Agreement (Neuraxis, INC), Underwriting Agreement (Adamas One Corp.), Underwriting Agreement (Adamas One Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 12 contracts
Samples: Underwriting Agreement (Timberline Resources Corp), Underwriting Agreement (Timberline Resources Corp), Underwriting Agreement (Northwest Biotherapeutics Inc)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm (together with local counsel) of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. The advancement and reimbursement obligations of the Company required hereby regarding expenses shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every expense is incurred and is due and payable, and in such amounts as fully pay each and every expense as it is incurred (and in no event later than ten (10) days following the date of any invoice therefor).
Appears in 12 contracts
Samples: Underwriting Agreement (99 Acquisition Group Inc.), Underwriting Agreement (99 Acquisition Group Inc.), Underwriting Agreement (99 Acquisition Group Inc.)
Procedure. If any Upon receipt by an Indemnified Person of notice of an action is brought against an Underwriter, a Selected Dealer or a Controlling such Indemnified Person in with respect of to which indemnity may reasonably be expected to be sought against the Company pursuant to Section 6.1under this Agreement, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnified Person shall promptly notify the Company in writing of the institution of such action and writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the Company may have on account of this Section 5 or otherwise to such Indemnified Person, except to the extent the Company is materially prejudiced as a proximate result of such failure. An Indemnified Person shall have the right to require that the Company assume the defense of any such action, action (including the employment and fees of counsel (subject designated by the Company and reasonably satisfactory to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expensesRepresentative). Such Underwriter, such Selected Dealer or Controlling Any Indemnified Person shall have the right to employ its or their own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Indemnified Person unless unless: (i) the employment of such Company has failed promptly to assume the defense and employ counsel at reasonably satisfactory to the expense Representative for the benefit of the Company shall have been authorized in writing by Underwriters and the Company in connection with the defense of such action, other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel. The Company shall not have employed counsel to have charge of be liable for the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter separate counsel (in addition to together with local counsel), Selected Dealer and/or Controlling Person representing all Indemnified Persons who are parties to such action), which counsel (together with any local counsel) for the Indemnified Persons shall be borne selected by the Company. Notwithstanding anything Representative, subject to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action Company’s approval (which approval shall not be unreasonably withheld). The Company shall not be liable for any settlement of any action effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Underwriters, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of that Indemnified Person from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice therefore); provided, however, that the Indemnified Persons shall repay such amounts to the extent it ultimately is determined that such persons are not entitled to indemnification hereunder.
Appears in 10 contracts
Samples: Underwriting Agreement (Arch Therapeutics, Inc.), Underwriting Agreement (Arch Therapeutics, Inc.), Underwriting Agreement (Data443 Risk Mitigation, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer the QIU or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer Underwriter or Controlling Person, as the case may be, QIU shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beQIU) and payment of actual expenses. Such Underwriter, such Selected Dealer the QIU or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, the QIU or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm (together with local counsel) of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer the QIU and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer the QIU or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every liability and expense is incurred and is due and payable, and in such amounts as fully satisfy each and every liability and expense as it is incurred (and in no event later than 10 days following the date of any invoice therefore).
Appears in 10 contracts
Samples: Underwriting Agreement (Cleantech Acquisition Corp.), Underwriting Agreement (Cleantech Acquisition Corp.), Underwriting Agreement (Globis Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm (together with local counsel) of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every liability and expense is incurred and is due and payable, and in such amounts as fully satisfy each and every liability and expense as it is incurred (and in no event later than 10 days following the date of any invoice therefore).
Appears in 10 contracts
Samples: Underwriting Agreement (Deep Medicine Acquisition Corp.), Underwriting Agreement (Deep Medicine Acquisition Corp.), Underwriting Agreement (East Stone Acquisition Corp)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel reasonably acceptable to the Underwriter or Selected Dealer, as the case may be, to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. This Indemnification provided for in this Section 5.1 shall not be available to any party who shall fail to give notice as provided in this Section 5.1.2 if the Company was unaware of the proceeding to which such notice would have related and was actually prejudiced by the failure to give such notice; provided, however, that indemnification shall only be limited to the extent of such prejudice; provided, further, that, the omission so to notify the Company will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 5.1. The Company shall not without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceedings.
Appears in 10 contracts
Samples: Underwriting Agreement (Symphony Acquisition Corp.), Underwriting Agreement (Symphony Acquisition Corp.), Underwriting Agreement (Staccato Acquisition Corp.)
Procedure. If any Upon receipt by an indemnified person under this section 5 (an “Indemnified Person”) of actual notice of an action is brought against an Underwriter, a Selected Dealer or a Controlling such Indemnified Person in with respect of to which indemnity may reasonably be expected to be sought against the Company pursuant to Section 6.1under this Agreement, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnified Person shall promptly notify the Company in writing of the institution of such action and writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the Company may have on account of this Section 5 or otherwise to such Indemnified Person, except to the extent the Company is materially prejudiced as a proximate result of such failure. An Indemnified Person shall have the right to require that the Company assume the defense of any such action, action (including the employment and fees of counsel (subject designated by the Company and reasonably satisfactory to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expensesRepresentative). Such Underwriter, such Selected Dealer or Controlling Any Indemnified Person shall have the right to employ its or their own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Indemnified Person unless unless: (i) the employment of such Company has failed promptly to assume the defense and employ counsel at reasonably satisfactory to the expense Representative for the benefit of the Company shall have been authorized in writing by Underwriters and the Company in connection with the defense of such action, other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel. The Company shall not have employed counsel to have charge of be liable for the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter separate counsel (in addition to together with local counsel), Selected Dealer and/or Controlling Person representing all Indemnified Persons who are parties to such action), which counsel (together with any local counsel) for the Indemnified Persons shall be borne selected by the Company. Notwithstanding anything Representative, subject to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action Company’s approval (which approval shall not be unreasonably withheld). The Company shall not be liable for any settlement of any action effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of each Indemnified Person, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of that Indemnified Person, from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice therefore).
Appears in 9 contracts
Samples: Underwriting Agreement (Guardion Health Sciences, Inc.), Underwriting Agreement (IMAC Holdings, Inc.), Underwriting Agreement (YayYo, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 9 contracts
Samples: Underwriting Agreement (Tantech Holdings LTD), Underwriting Agreement (Peak Resorts Inc), Underwriting Agreement (Zheng Hui Industry Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and reasonable fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter the Representative (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 9 contracts
Samples: Underwriting Agreement (Selway Capital Acquisition Corp.), Underwriting Agreement (Selway Capital Acquisition Corp.), Underwriting Agreement (Selway Capital Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall promptly assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or action within reasonable time under the circumstances; (ii) the Company shall not have employed counsel to have charge of the assumed defense of such action, action pursuant to the preceding sentence; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company Company, or another conflict of interest or conflict as to legal representation exists (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. The Company shall not, without the prior written consent of the Underwriter, effect any settlement of any pending or threatened action in respect of which any Underwriter is or could have been a party and indemnity could have been sought hereunder by such Underwriter unless such settlement (i) includes an unconditional release of such Underwriter 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 an Underwriter. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheldwithheld or delayed.
Appears in 9 contracts
Samples: Underwriting Agreement (Aquaron Acquisition Corp.), Aquaron Acquisition Corp., Qomolangma Acquisition Corp.
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or action within reasonable time under the circumstances; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one (1) additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 8 contracts
Samples: Underwriting Agreement (Verity Acquisition Corp), Underwriting Agreement (Kairous Acquisition Corp. LTD), Underwriting Agreement (8i Acquisition 2 Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such UnderwriterUnderwriter , such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel reasonably acceptable to the Underwriter or Selected Dealer, as the case may be, to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to a local counsel)firm of attorneys in any applicable jurisdiction) selected by the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. The Company shall not settle any action without the prior consent of the Representative, unless such settlement provides for a full release of the Underwriters and Selected Dealers (whether or not named as a party to the action) without any admission of wrongdoing.
Appears in 8 contracts
Samples: Underwriting Agreement (Santa Monica Media CORP), Underwriting Agreement (Chardan China Acquisition Corp III), Underwriting Agreement (Viceroy Acquisition CORP)
Procedure. If any action is brought against an the Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such the Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such the Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such The Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such the Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 7 contracts
Samples: Underwriting Agreement (SciSparc Ltd.), Underwriting Agreement (PolyPid Ltd.), Underwriting Agreement (Volitionrx LTD)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company Company, or another conflict of interest or conflict as to legal representation exists (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 7 contracts
Samples: Underwriting Agreement (Broad Capital Acquisition Corp), Underwriting Agreement (Broad Capital Acquisition Corp), Underwriting Agreement (UK Wisdom LTD)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and reasonable and documented fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual actual, reasonable and documented expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 7 contracts
Samples: Underwriting Agreement (Jupiter Neurosciences, Inc.), Underwriting Agreement (Jupiter Neurosciences, Inc.), Underwriting Agreement (Biofrontera Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected DealerControlling Person, as the case may beapplicable) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) counsel to such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer such Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 7 contracts
Samples: Underwriting Agreement (RF Acquisition Corp II), Underwriting Agreement (Bowen Acquisition Corp), Underwriting Agreement (Bowen Acquisition Corp)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling PersonDealer, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 7 contracts
Samples: Underwriting Agreement (JK Acquisition Corp.), Underwriting Agreement (JK Acquisition Corp.), Underwriting Agreement (JK Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer the Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer Underwriter or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer The Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer Underwriter or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in advance in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer ) and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if the Underwriter or any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 7 contracts
Samples: Underwriting Agreement (Wah Fu Education Group LTD), Underwriting Agreement (Agm Group Holdings, Inc.), Underwriting Agreement (Hexindai Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter Indemnified Party (in addition to one local counsel), Selected Dealer and/or Controlling Person if any) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 7 contracts
Samples: Underwriting Agreement (Clip Interactive, LLC), Underwriting Agreement (Hancock Jaffe Laboratories, Inc.), Underwriting Agreement (Hancock Jaffe Laboratories, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable and documented fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve in writing the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 6 contracts
Samples: Underwriting Agreement (Peraso Inc.), Underwriting Agreement (Peraso Inc.), Underwriting Agreement (Peraso Inc.)
Procedure. If any action is brought against an the Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such the Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such the Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such the Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 6 contracts
Samples: Underwriting Agreement (Hyperdynamics Corp), Underwriting Agreement (China Shandong Industries, Inc.), Underwriting Agreement (China Shandong Industries, Inc.)
Procedure. If any Upon receipt by an Indemnified Person of actual notice of an action is brought against an Underwriter, a Selected Dealer or a Controlling such Indemnified Person in with respect of to which indemnity may reasonably be expected to be sought against the Company pursuant to Section 6.1under this Agreement, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnified Person shall promptly notify the Company in writing of the institution of such action and writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the Company may have on account of this Section 9 or otherwise to such Indemnified Person, except to the extent (and only to the extent) that its ability to assume the defense is actually impaired by such failure or delay. The Company shall have the right to assume the defense of any such action, action (including the employment and fees of counsel (subject and reasonably satisfactory to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expensesPlacement Agent). Such Underwriter, such Selected Dealer or Controlling Any Indemnified Person shall have the right to employ its or their own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Indemnified Person unless unless: (i) the employment of such Company has failed promptly to assume the defense and employ counsel at for the expense benefit of the Company shall have been authorized in writing by Placement Agent and the Company in connection with the defense of such action, other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel, it being understood, however, that the Company shall not have employed counsel to have charge be liable for the expenses of more than one separate firm of attorneys for the defense Placement Agent and all Indemnified persons in any one action or series of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to related actions in the Company (in which case the same jurisdiction. The Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of liable for any settlement of such any action effected without its written consent (which approval shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Placement Agent, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each Indemnified Person, acceptable to such Indemnified Party, from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice therefore).
Appears in 6 contracts
Samples: Placement Agency Agreement (InspireMD, Inc.), Placement Agency Agreement (InspireMD, Inc.), Placement Agency Agreement (InspireMD, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, Underwriter or such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 6 contracts
Samples: Underwriting Agreement (Argyle Security Acquisition CORP), Underwriting Agreement (Argyle Security Acquisition CORP), Underwriting Agreement (Argyle Security Acquisition CORP)
Procedure. If any Upon receipt by an indemnified person under this section 5 (an “Indemnified Person”) of actual notice of an action is brought against an Underwriter, a Selected Dealer or a Controlling such Indemnified Person in with respect of to which indemnity may reasonably be expected to be sought against the Company pursuant to Section 6.1under this Agreement, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnified Person shall promptly notify the Company in writing of the institution of such action and writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the Company may have on account of this Section 5 or otherwise to such Indemnified Person, except to the extent the Company is materially prejudiced as a proximate result of such failure. An Indemnified Person shall have the right to require that the Company assume the defense of any such action, action (including the employment and fees of counsel (subject designated by the Company and reasonably satisfactory to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expensesRepresentatives). Such Underwriter, such Selected Dealer or Controlling Any Indemnified Person shall have the right to employ its or their own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Indemnified Person unless unless: (i) the employment of such Company has failed promptly to assume the defense and employ counsel at reasonably satisfactory to the expense Representatives for the benefit of the Company shall have been authorized in writing by Underwriters and the Company in connection with the defense of such action, other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel. The Company shall not have employed counsel to have charge of be liable for the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter separate counsel (in addition to together with local counsel), Selected Dealer and/or Controlling Person representing all Indemnified Persons who are parties to such action), which counsel (together with any local counsel) for the Indemnified Persons shall be borne selected by the Company. Notwithstanding anything Representatives, subject to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action Company’s approval (which approval shall not be unreasonably withheld). The Company shall not be liable for any settlement of any action effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of each Indemnified Person, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of that Indemnified Person, from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice therefore).
Appears in 6 contracts
Samples: Underwriting Agreement (Guardion Health Sciences, Inc.), Underwriting Agreement (Guardion Health Sciences, Inc.), Underwriting Agreement (Guardion Health Sciences, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.16.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such actionaction until a reasonable time, or (iii) such indemnified party or parties the Company shall have reasonably concluded that there may be defenses available to it or them such indemnified parties which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter Indemnified Party (in addition to local counsel), Selected Dealer and/or Controlling Person ) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 6 contracts
Samples: Underwriting Agreement (Maison Solutions Inc.), Underwriting Agreement (Oranco Inc), Underwriting Agreement (Maison Solutions Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded receieved an opinion of counsel to the effect that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. This Indemnification provided for in this Section 5.1 shall not be available to any party who shall fail to give prompt notice as provided in this Section 5.1.2 if the Company was unaware of the proceeding to which such notice would have related and was actually prejudiced by the failure to give such prompt notice; provided, however, that indemnification shall only be limited to the extent of such prejudice; provided, further, that, the omission so to notify the Company will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 5.1. The Company shall not without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceedings.
Appears in 6 contracts
Samples: Underwriting Agreement (Restaurant Acquisition Partners, Inc.), Underwriting Agreement (Restaurant Acquisition Partners, Inc.), Underwriting Agreement (Restaurant Acquisition Partners, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter Indemnified Party (in addition to local counsel), Selected Dealer and/or Controlling Person counsel if necessary) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 6 contracts
Samples: Underwriting Agreement (Akerna Corp.), Underwriting Agreement (Akerna Corp.), Underwriting Agreement (Advaxis, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall promptly assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or action within reasonable time under the circumstances; (ii) the Company shall not have employed counsel to have charge of the assumed defense of such action, action pursuant to the preceding sentence; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company Company, or another conflict of interest or conflict as to legal representation exists (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. The Company shall not, without the prior written consent of the Underwriter, which consent shall not be unreasonably withheld, effect any settlement of any pending or threatened action in respect of which any Underwriter is or could have been a party and indemnity could have been sought hereunder by such Underwriter unless such settlement (i) includes an unconditional release of such Underwriter 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 an Underwriter. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheldwithheld or delayed.
Appears in 6 contracts
Samples: Underwriting Agreement (Bayview Acquisition Corp), Underwriting Agreement (Bayview Acquisition Corp), Agreement (Bellevue Life Sciences Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Indemnitee in respect of which indemnity may be sought against the Company Indemnitors pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnitee shall promptly notify the Company Indemnitors in writing of the institution of such action and the Company Indemnitors shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beapplicable Indemnitee) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Indemnitee shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless Indemnitee unless: (i) the employment of such counsel at the expense of the Company Indemnitors shall have been authorized in writing by the applicable Company Indemnitor in connection with the defense of such action, or ; (ii) the Company Indemnitors shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties Indemnitee(s) shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company Indemnitors (in which case the Company Indemnitors shall not have the right to direct the defense of such action on behalf of the indemnified party or partiesapplicable Indemnittees), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person the applicable Indemnitee shall be borne by the CompanyCompany Indemnitors. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person the applicable Indemnitee shall assume the defense of such action as provided above, the Company Indemnitors shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 6 contracts
Samples: Underwriting Agreement (Star Maritime Acquisition Corp.), Underwriting Agreement (Star Maritime Acquisition Corp.), Underwriting Agreement (Star Maritime Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person Person, taken together as a group, shall be borne by the Company. In no event shall the Company be liable for fees and expenses of more than one firm of attorneys (in addition to any local counsel) separate from its own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 6 contracts
Samples: Underwriting Agreement (Cytori Therapeutics, Inc.), Underwriting Agreement (Stemcells Inc), Plus Therapeutics, Inc.
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.1Sections 5.1.1 and 5.1.2, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, party shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected DealerIndemnified Party, as the case may beapplicable) and payment of actual expenses. Such Underwriter, such Selected Dealer Indemnified Party or Controlling Person Indemnified Parties shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless Indemnified Party unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) counsel to such indemnified party Indemnified Party or parties Indemnified Parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party Indemnified Party or partiesIndemnified Parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person the Indemnified Parties shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person an Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 5 contracts
Samples: Underwriting Agreement (Relativity Acquisition Corp), Underwriting Agreement (Relativity Acquisition Corp), Underwriting Agreement (Murphy Canyon Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.17.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 5 contracts
Samples: Underwriting Agreement (China VantagePoint Acquisition Co), Underwriting Agreement (China VantagePoint Acquisition Co), Underwriting Agreement (China VantagePoint Acquisition Co)
Procedure. If any Upon receipt by an Indemnified Person of actual notice of an action is brought against an Underwriter, a Selected Dealer or a Controlling such Indemnified Person in with respect of to which indemnity may reasonably be expected to be sought against the Company pursuant to Section 6.1under this Agreement, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnified Person shall promptly notify the Company in writing of the institution of such action and writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the Company may have on account of this Section 9 or otherwise to such Indemnified Person, except to the extent (and only to the extent) that its ability to assume the defense of any such actionaction (as contemplated in the next sentence) is actually impaired by such failure or delay. The Company shall, if requested by the Placement Agent, assume the defense of any such action (including the employment and fees of counsel (subject reasonably satisfactory to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expensesPlacement Agent). Such Underwriter, such Selected Dealer or Controlling Any Indemnified Person shall have the right to employ its or their own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Indemnified Person unless unless: (i) the employment of such Company has failed promptly to assume the defense and employ counsel at for the expense benefit of the Company shall have been authorized in writing by Placement Agent and the Company in connection with the defense of such action, other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel, it being understood, however, that the Company shall not have employed counsel to have charge of be liable for the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter separate counsel (in addition to together with local counsel), Selected Dealer and/or Controlling Person shall be borne by representing the CompanyPlacement Agent and all Indemnified Persons who are parties to such action. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the The Company shall have the right to approve the terms of not be liable for any settlement of such any action effected without its written consent (which approval shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Placement Agent, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each Indemnified Person, acceptable to such Indemnified Party, from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice therefor).
Appears in 5 contracts
Samples: Placement Agency Agreement (ICZOOM Group Inc.), Placement Agency Agreement (SunCar Technology Group Inc.), Placement Agency Agreement (China Natural Resources Inc)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and the reasonable fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 5 contracts
Samples: Underwriting Agreement (Clarus Therapeutics Holdings, Inc.), Underwriting Agreement (Clarus Therapeutics Holdings, Inc.), Underwriting Agreement (Clarus Therapeutics Holdings, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheldaction, except where such settlement provides for the full release of the Company.
Appears in 5 contracts
Samples: Underwriting Agreement (American Telecom Services Inc), Underwriting Agreement (AeroGrow International, Inc.), Underwriting Agreement (Gigabeam Corp)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and reasonable fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 5 contracts
Samples: Underwriting Agreement (Tg Therapeutics, Inc.), Underwriting Agreement (Stemline Therapeutics Inc), Underwriting Agreement (Stemline Therapeutics Inc)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded concluded, based upon an opinion of their respective counsel, that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 5 contracts
Samples: Lock Up Agreement (Applied UV, Inc.), Underwriting Agreement (Applied UV, Inc.), Underwriting Agreement (Applied UV, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1 hereof, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) the action includes both the Company and the indemnified party as defendants and such indemnified party or parties shall have reasonably concluded been advised by its counsel that there may be defenses available to it or them which are different from or additional to those available to the Company which makes it impossible or inadvisable for the Company and such indemnified party to be represented in the action by the same counsel (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or partiesparty), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by the Underwriter Indemnified Parties who are party to such Underwriter action (in addition to local counsel), Selected Dealer and/or Controlling Person ) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Jupiter Wellness, Inc.), Underwriting Agreement (SRM Entertainment, Inc.), Underwriting Agreement (SRM Entertainment, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person the Company shall assume the defense of such action as provided above, the Company Underwriter, Selected Dealer or controlling person shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (H D Partners Acquisition CORP), Warrant Agreement (Echo Healthcare Acquisition Corp.), Underwriting Agreement (HD Partners Acquisition CORP)
Procedure. If Each Purchaser Indemnitee entitled to indemnification under Section 8.1 shall give notice to the Company required to provide indemnification promptly after such Purchaser Indemnitee has actual knowledge of any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of claim as to which indemnity may be sought against sought, and shall permit the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of any such actionclaim in any litigation resulting therefrom, including provided that counsel for the employment Company, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Purchaser Indemnitee (whose approval shall not be unreasonably withheld) and fees the Purchaser Indemnitee may participate in such defense at its own expense, and provided further that the failure of counsel (subject any Purchaser Indemnitee to give notice as provided herein shall not relieve the Company of its obligations under Section 8.1 except to the reasonable approval extent that the Company is materially and adversely affected by such failure to provide notice. The Company, in the defense of any such claim or litigation, shall, except with the consent of each Purchaser Indemnitee, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof a release of such Underwriter Purchaser Indemnitee from all liability in respect to such claim or litigation. Each Purchaser Indemnitee shall furnish such Selected Dealer, non-privileged information regarding itself or the claim in questions as the case Company may be) reasonably request in writing and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel as shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company reasonably required in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees claim and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheldlitigation resulting therefrom.
Appears in 4 contracts
Samples: Preferred Stock and Warrant Purchase Agreement (Lime Energy Co.), Preferred Stock and Warrant Purchase Agreement (Lime Energy Co.), Preferred Stock and Warrant Purchase Agreement (Lime Energy Co.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) counsel to such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person for all indemnified parties shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Novus Capital Corp), Underwriting Agreement (Novus Capital Corp), Underwriting Agreement (Novus Capital Corp)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such actionaction until a reasonable time, or (iii) such indemnified party or parties the Company shall have reasonably concluded that there may be defenses available to it or them such indemnified parties which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter Indemnified Party (in addition to local counsel), Selected Dealer and/or Controlling Person ) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (E-Home Household Service Holdings LTD), Underwriting Agreement (HiTek Global Inc.), Underwriting Agreement (Puhui Wealth Investment Management Co., Ltd.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), ) Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Oasmia Pharmaceutical AB), Underwriting Agreement (Oasmia Pharmaceutical AB), Underwriting Agreement (Oasmia Pharmaceutical AB)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) counsel to such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. Further, Underwriters waive any claims against the Trust Account with respect to such indemnification.
Appears in 4 contracts
Samples: Underwriting Agreement (InterPrivate Acquisition Corp.), Underwriting Agreement (InterPrivate Acquisition Corp.), Underwriting Agreement (Schultze Special Purpose Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the CompanyCompany but only, with respect to clause (iii) with respect to such defenses). Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Mandalay Digital Group, Inc.), Underwriting Agreement (Superconductor Technologies Inc), Underwriting Agreement (Superconductor Technologies Inc)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm (together with local counsel) of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer the Underwriters and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriters or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. The advancement and reimbursement obligations of the Company required hereby regarding expenses shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every expense is incurred and is due and payable, and in such amounts as fully pay each and every expense as it is incurred (and in no event later than 10 days following the date of any invoice therefor).
Appears in 4 contracts
Samples: Underwriting Agreement (Fortune Joy International Acquisition Corp), Underwriting Agreement (Fortune Joy International Acquisition Corp), Underwriting Agreement (Fortune Joy International Acquisition Corp)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and reasonable fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Selway Capital Acquisition Corp.), Underwriting Agreement (FlatWorld Acquisition Corp.), Underwriting Agreement (FlatWorld Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, ; or (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 6 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent: (i) includes an unconditional release of each indemnified party from all liability arising or that may arise out of such claim, action or proceeding; and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. Notwithstanding the foregoing, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6.1 effected without its written consent if: (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request; (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into; and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
Appears in 4 contracts
Samples: Underwriting Agreement (U.S. GoldMining Inc.), Underwriting Agreement (U.S. GoldMining Inc.), Underwriting Agreement (U.S. GoldMining Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or such Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)) selected by the Underwriter, Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (SMG Indium Resources Ltd.), Underwriting Agreement (SMG Indium Resources Ltd.), Underwriting Agreement (SMG Indium Resources Ltd.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer or Underwriters and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer either Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Gurunet Corp), Underwriting Agreement (Gurunet Corp), Underwriting Agreement (Gurunet Corp)
Procedure. If any action is Action shall be brought against an Underwritera Registration Indemnitee or any other person entitled to indemnification (collectively with the Registration Indemnitee, a Selected Dealer or a Controlling Person the "Indemnitee") in respect of which indemnity may be sought against the Company pursuant to Section 6.1Company, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnitee shall promptly notify the Company in writing of the institution of such action Company, and the Company shall assume the defense of such actionthereof, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual all fees and expenses. Such Underwriter, such Selected Dealer or Controlling Person Indemnitee shall have the right to employ its or their own separate counsel in any such caseaction, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person person unless (i) the employment of such counsel at the expense of the Company shall have been authorized has agreed in writing by the Company in connection with the defense of to pay such actionfees and expenses, or (ii) the Company shall not have employed counsel has failed to have charge of assume the defense of such actionand employ counsel, or (iii) the named parties to an Action (including the impleaded parties) include both an Indemnitee and the Company and such Indemnitee shall have been advised by its counsel that representation of such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to and the Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Action on behalf of such Indemnitee). The Company shall have the right to approve the terms of not be liable for any settlement of any such action Action affected without its written consent, which approval shall not be unreasonably withheldwithheld or delayed, but if settled with such written consent, or if there be a final judgment for the plaintiff in any such Action, the Company agrees to indemnify and hold harmless each Indemnitee, to the extent provided herein from and against any Losses by reason of such settlement or judgment.
Appears in 4 contracts
Samples: Employment Agreement (Net2phone Inc), Employment Agreement (Net2phone Inc), Employment Agreement (Net2phone Inc)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person the QIU and/or controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as Underwriter and/or the case may be, QIU shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as and/or the case may beQIU) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person the QIU and/or controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, the QIU and/or such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) counsel to such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer the QIU and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person the QIU and/or controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Lifesci Acquisition II Corp.), Underwriting Agreement (Lifesci Acquisition II Corp.), Underwriting Agreement (LifeSci Acquisition III Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and reasonable fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Platinum Energy Resources Inc), Underwriting Agreement (Platinum Energy Resources Inc), Underwriting Agreement (Platinum Energy Resources Inc)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and reasonable fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Fortress America Acquisition CORP), Underwriting Agreement (Fortress America Acquisition CORP), Underwriting Agreement (Fortress America Acquisition CORP)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.1Sections 5.1.1 or 5.1.2 hereof, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses; provided, that the failure to give such notice shall not relieve the Company from any liability it may have under Sections 5.1.1 or 5.1.2 hereof, except to the extent the Company has been materially prejudiced (through forfeiture of substantive rights or defenses) by such failure and; provided further, that the failure to notify the Company shall not relieve the Company from any liability that it may have to an indemnified party as determined under Sections 5.1.1 or 5.1.2 hereof. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have take charge of the defense of such actionaction within a reasonable period of time, or (iii) such indemnified party or parties shall have reasonably concluded been advised by counsel that there may be defenses available is an actual conflict between the parties as to it or them which are different from or additional to those available to the Company (such defenses, in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such by, collectively, the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person and controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Global Logistics Acquisition CORP), Underwriting Agreement (TAC Acquisition Corp.), Underwriting Agreement (Global Logistics Acquisition CORP)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer an Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Infodata Systems Inc), Underwriting Agreement (Infodata Systems Inc), Crossz Software (Cross Z International Inc)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, Underwriter or such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) counsel for the Representative reasonably determines that it would be inappropriate under the applicable rules of professional responsibility for the same counsel to represent both the Company and the party being indemnified, or (ii) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (iiiii) the Company shall not have employed counsel to have charge of the defense of such action, or (iiiiv) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the exclusive right to approve settle the terms claim or proceeding provided that the Company will not settle any such claim, action or proceeding without the prior written consent of any settlement of such action the Representative, which approval shall will not be unreasonably withheld. The Company shall not be liable under this Section 5.1 for any settlements entered into by an Underwriter, Selected Dealer or Controlling Person without the Company’s prior written consent, which shall not be unreasonable withheld, delayed or conditioned.
Appears in 4 contracts
Samples: Underwriting Agreement (Atomera Inc), Underwriting Agreement (Atomera Inc), Underwriting Agreement (Aqua Metals, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, action or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (Alpha Security Group CORP), Underwriting Agreement (Alpha Security Group CORP), Underwriting Agreement (Alpha Security Group CORP)
Procedure. If any Upon receipt by an Indemnified Person of actual notice of an action is brought against an Underwriter, a Selected Dealer or a Controlling such Indemnified Person in with respect of to which indemnity may reasonably be expected to be sought against the Company pursuant to Section 6.1under this Agreement, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnified Person shall promptly notify the Company in writing of the institution of such action and writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the Company may have on account of this Section 5 or otherwise to such Indemnified Person, except to the extent the Company is materially prejudiced as a proximate result of such failure. The Company shall have the right to assume the defense of any such action, action (including the employment and fees of counsel (subject designated by the Company and reasonably satisfactory to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expensesUnderwriter). Such Underwriter, such Selected Dealer or Controlling Any Indemnified Person shall have the right to employ its or their own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Indemnified Person unless unless: (i) the employment of such Company has failed promptly to assume the defense and employ counsel at satisfactory to the expense Underwriter for the benefit of the Company shall have been authorized in writing by Underwriter and the Company in connection with the defense of such action, other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel. The Company shall not have employed counsel to have charge of be liable for the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter separate counsel (in addition to together with local counsel), Selected Dealer and/or Controlling Person representing all Indemnified Persons who are parties to such action), which counsel (together with any local counsel) for the Indemnified Persons shall be borne selected by the CompanyUnderwriter. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the The Company shall have the right to approve the terms of not be liable for any settlement of such any action effected without its written consent (which approval shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Underwriter, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each Indemnified Person, acceptable to such Indemnified Party, from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice therefore).
Appears in 4 contracts
Samples: Underwriting Agreement (PetroShare Corp.), Underwriting Agreement (PetroShare Corp.), Underwriting Agreement (PetroShare Corp.)
Procedure. If any action is brought against an UnderwriterUnderwriter , a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.16.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and reasonable fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such UnderwriterUnderwriter , such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such UnderwriterUnderwriter , such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Underwriting Agreement (International Metal Enterprises, Inc.), Underwriting Agreement (International Metal Enterprises, Inc.), Underwriting Agreement (International Metal Enterprises, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person (each of which as an “indemnified party” and all of whom are “indemnified parties”) shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. This Indemnification provided for in this Section 5.1 shall not be available to any party who shall fail to give notice as provided in this Section 5.1.2 if the Company was unaware of the proceeding to which such notice would have related and was actually prejudiced by the failure to give such notice; provided, however, that indemnification shall only be limited to the extent of such prejudice; provided, further, that, the omission so to notify the Company will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 5.1. The Company shall not without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceedings.
Appears in 4 contracts
Samples: Underwriting Agreement (Global Alternative Asset Management, Inc.), Underwriting Agreement (Global Alternative Asset Management, Inc.), Underwriting Agreement (Global Alternative Asset Management, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer the Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer The Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Underwriter or such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 3 contracts
Samples: Underwriting Agreement (Teardrop Golf Co), Underwriting Agreement (Montana Mills Bread Co Inc), Underwriting Agreement (Millbrook Press Inc)
Procedure. If any action is brought against an any Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such the Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such the Underwriter or such Selected DealerDealer or Controlling Person, as the case may be) and payment of actual expenses. Such UnderwriterAny delay in notice will not relieve the Company of any liability to an indemnified party, such Selected Dealer or Controlling Person except to the extent that the Company demonstrates that the delay prejudiced the defense of the action. Any indemnified person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel which are incurred after the Company assumes the defense of the action shall be at the expense of such the Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed fails to assume the defense or to employ counsel to have charge of the defense of such action within a reasonable time after notice of the action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)) selected by the Underwriter, Selected Dealer and/or Controlling Person in their sole discretion shall be borne by the Company. Notwithstanding anything Company and paid as incurred or, at the option of the indemnified party, advanced pursuant to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheldSection 5.1.4.
Appears in 3 contracts
Samples: Underwriting Agreement (Ideal Power Inc.), Underwriting Agreement (Ideal Power Inc.), Underwriting Agreement (Ideal Power Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.16.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses; provided, that the failure to give such notice shall not relieve the Company from any liability it may have under Sections 6.1.1 or 6.1.2 hereof, except to the extent the Company has been materially prejudiced (through forfeiture of substantive rights or defenses) by such failure and; provided further, that the failure to notify the Company shall not relieve the Company from any liability that it may have to an indemnified party as determined under Sections 6.1.1 or 6.1.2 hereof. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have take charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 3 contracts
Samples: Underwriting Agreement (Highbury Financial Inc), Underwriting Agreement (Highbury Financial Inc), Underwriting Agreement (Highbury Financial Inc)
Procedure. If any action is brought against an the Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. This Indemnification provided for in this Section 5.1 shall not be available to any party who shall fail to give notice as provided in this Section 5.1.2 if the Company was unaware of the proceeding to which such notice would have related and was actually prejudiced by the failure to give such notice; provided, however, that indemnification shall only be limited to the extent of such prejudice; provided, further, that, the omission so to notify the Company will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 5.1. The Company shall not without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceedings.
Appears in 3 contracts
Samples: Underwriting Agreement (Ascend Acquisition Corp.), Underwriting Agreement (Ascend Acquisition Corp.), Underwriting Agreement (Ascend Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless controlling person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or ; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) counsel to such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.. EarlyBirdCapital, Inc. _________ __, 2014 Page 34 of 42
Appears in 3 contracts
Samples: Underwriting Agreement (CB Pharma Acquisition Corp.), Underwriting Agreement (CB Pharma Acquisition Corp.), Underwriting Agreement (CB Pharma Acquisition Corp.)
Procedure. If any action is brought against an any Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in advance in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 3 contracts
Samples: Underwriting Agreement (Sunity Online Entertainment LTD), Underwriting Agreement (Sunity Online Entertainment LTD), Underwriting Agreement (Sunity Online Entertainment LTD)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, Underwriter or such Selected Dealer or Controlling Person unless unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or action within reasonable time under the circumstances; (ii) the Company shall not have employed counsel to have charge of the defense of such action, ; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys (together with local counsel) selected by such the Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld. The reimbursement obligations of the Company required hereby regarding expenses shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every expense is incurred and is due and payable, and in such amounts as fully pay each and every expense as it is incurred (and in no event later than 10 days following the date of any invoice therefore).
Appears in 3 contracts
Samples: Underwriting Agreement (Zi Toprun Acquisition Corp.), Underwriting Agreement (Zi Toprun Acquisition Corp.), Underwriting Agreement (Zi Toprun Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses; provided, that the failure to give such notice shall not relieve the Company from any liability it may have under Sections 5.1.1 or 5.1.2 hereof, except to the extent the Company has been materially prejudiced (through forfeiture of substantive rights or defenses) by such failure and; provided further, that the failure to notify the Company shall not relieve the Company from any liability that it may have to an indemnified party other than on account of Sections 5.1.1 or 5.1.2 hereof. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have take charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 3 contracts
Samples: Underwriting Agreement (Shine Media Acquisition Corp.), Underwriting Agreement (Shine Media Acquisition Corp.), Underwriting Agreement (Shine Media Acquisition Corp.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person Underwriter Indemnified Party in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Underwriter Indemnified Party shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beIndemnified Party) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person Underwriter Indemnified Party unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action within a reasonable time after receipt by the Company of notice of the institution of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter Indemnified Party (in addition to local counsel), Selected Dealer and/or Controlling Person ) shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person Underwriter Indemnified Party shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 3 contracts
Samples: Underwriting Agreement (BranchOut Food Inc.), Underwriting Agreement (BranchOut Food Inc.), Underwriting Agreement (BranchOut Food Inc.)
Procedure. If any Upon receipt by an Indemnified Person of notice of an action is brought against an Underwriter, a Selected Dealer or a Controlling such Indemnified Person in with respect of to which indemnity may reasonably be expected to be sought against the Company pursuant to Section 6.1under this Agreement, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, Indemnified Person shall promptly notify the Company in writing of the institution of such action and writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the Company may have on account of this Section 5 or otherwise to such Indemnified Person, except to the extent the Company is materially prejudiced as a proximate result of such failure. The Company shall have the right to assume the defense of any such action, action (including the employment and fees of counsel (subject designated by the Company and reasonably satisfactory to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expensesRepresentative). Such Underwriter, such Selected Dealer or Controlling Any Indemnified Person shall have the right to employ its or their own separate counsel in any such caseaction and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Indemnified Person unless unless: (i) the employment of such Company has failed promptly to assume the defense and employ counsel at satisfactory to the expense Representative for the benefit of the Company shall have been authorized in writing by Underwriters and the Company in connection with the defense of such action, other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel. The Company shall not have employed counsel to have charge of be liable for the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter separate counsel (in addition to together with local counsel), Selected Dealer and/or Controlling Person representing all Indemnified Persons who are parties to such action, which counsel (together with any local counsel) for the Indemnified Persons shall be borne selected by the CompanyRepresentative. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the The Company shall have the right to approve the terms of not be liable for any settlement of such any action effected without its written consent (which approval shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Underwriters, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each Indemnified Person, acceptable to such Indemnified Party, from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice therefore); provided, however, that the Indemnified Persons shall repay such amounts to the extent it ultimately is determined that such persons are not entitled to indemnification hereunder.
Appears in 3 contracts
Samples: Underwriting Agreement (Jupiter Wellness, Inc.), Underwriting Agreement (Jupiter Wellness, Inc.), Underwriting Agreement (PAVmed Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable and documented fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 3 contracts
Samples: Underwriting Agreement (Helius Medical Technologies, Inc.), Underwriting Agreement (Helius Medical Technologies, Inc.), Underwriting Agreement (Helius Medical Technologies, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action (provided that the failure to notify the Company shall not relieve the Company from any liability that it may have pursuant to Section 5.1.1 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure, and provided that failure to notify the Company shall not relieve the Company from any liability that it may have otherwise than pursuant to Section 5.1.1) and the Company shall assume the defense of such action, including the employment and reasonable fees of counsel (subject to the reasonable approval of such Underwriter Underwriter, such Selected Dealer or such Selected DealerControlling Person, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnified party or parties and the Company and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)) selected by the Underwriter, Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 3 contracts
Samples: Underwriting Agreement (Stemline Therapeutics Inc), Underwriting Agreement (Stemline Therapeutics Inc), Underwriting Agreement (Stemline Therapeutics Inc)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person controlling person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Underwriter or Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses; provided, that the failure to give such notice shall not relieve the Company from any liability it may have under Sections 5.1.1 or 5.1.2 hereof, except to the extent the Company has been materially prejudiced (through forfeiture of substantive rights or defenses) by such failure and; provided further, that the failure to notify the Company shall not relieve the Company from any liability that it may have to an indemnified party as determined under Sections 5.1.1 or 5.1.2 hereof. Such Underwriter, such Selected Dealer or Controlling Person controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person controlling person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have take charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel)the Underwriter, Selected Dealer and/or Controlling Person controlling person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any the Underwriter, Selected Dealer or Controlling Person controlling person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 3 contracts
Samples: Underwriting Agreement (Ad.Venture Partners, Inc.), Underwriting Agreement (Ad.Venture Partners, Inc.), Underwriting Agreement (Ad.Venture Partners, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer Underwriter or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.15.1.1, such Underwriter, such Selected Dealer Underwriter or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may beUnderwriter) and payment of actual expenses. Such Underwriter, such Selected Dealer Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer Underwriter or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such the Underwriter (in addition to local counsel), Selected Dealer ) and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action action, which approval shall not be unreasonably withheld.
Appears in 3 contracts
Samples: Underwriting Agreement (Kips Bay Medical, Inc.), Underwriting Agreement (Kips Bay Medical, Inc.), Underwriting Agreement (Kips Bay Medical, Inc.)
Procedure. If any action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or Controlling Person, as the case may be, shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter, such Selected Dealer or Controlling Person unless (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action, or (ii) the Company shall not have employed counsel to have charge of the defense of such action within thirty (30) days of receiving notice of such action, or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
Appears in 3 contracts
Samples: Underwriting Agreement (WaferGen Bio-Systems, Inc.), Underwriting Agreement (WaferGen Bio-Systems, Inc.), Underwriting Agreement (WaferGen Bio-Systems, Inc.)
